Hough v. Porter

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This suit was instituted on April 14, 1900, by Marion Conley and Annie C. Hough against Stephen A. D. Porter, to restrain him from interfering with the flow of the waters of Silver Creek, in Lake County, Oregon, to plaintiffs' premises. On the 8th day of October of the same year, by permission of the court, an amended complaint was filed, in which Annie C. Hough appears as the sole plaintiff, with Stephen A. D. Porter as the only defendant, averring, in effect, that plaintiff and her grantors, for more than 15 years prior thereto, were the owners of certain arid land there described, riparian to the stream named, which for more than 20 years has required the use of 500 inches of the waters of Silver Creek for the proper irrigation thereof, without which plaintiff's land would become worthless, etc.; that in the year 1895, Porter wrongfully constructed, and has ever since maintained, and threatens to continue, a dam and head gate in the channel of Silver Creek above her premises in such a manner as to interfere with the flow thereof to her farm, thereby depriving her of the use of the water necessary for the irrigation thereof, as to which plaintiff avers that she has 280 acres of land adapted chiefly to the growing of grass and requiring the amount of water specified for the proper irrigation thereof, without which the lands would become worthless. These averments were followed by the usual prayer for equitable relief. Defendant answered, specifically denying such allegations as were inconsistent with the affirmative matter in the answer, which affirmative averments are, in effect, as follows: That the cause of suit did not accrue within 10 years before its commencement; that *Page 328

Porter is the owner in fee of certain lands described, followed by the usual allegations as to the irrigation season — the lands being arid, requiring irrigation, as well as riparian on the stream — claiming his diversion as prior appropriator from March 3, 1883, and application of the water to a beneficial use to the extent of 100 inches under a six-inch pressure; and that in April, 1895, this point of diversion was changed to a more convenient point about 200 yards below his former dam, from which his diversion was thereafter continued, giving the dimensions of the ditch, etc., and its carrying capacity fixed at 100 inches, all of which it is maintained has been constantly used since March 1883, in the proper irrigation of his lands, and without which his lands would become worthless, etc. This is followed by a prayer to the effect that: (1) Plaintiff's suit be dismissed, and defendant go hence unharmed; (2) that the preliminary injunction issued be dissolved; and (3) for such other and general relief as may seem meet and equitable.

An amended reply having placed the cause at issue, it was referred to the official reporter as referee to take and report the testimony, who did so and certified it to the court; and the court then took the cause under advisement. After due consideration, the court, on October 23, 1901, after hearing the evidence and argument of counsel upon the testimony taken, and after being duly advised, and finding it impracticable to settle and make a complete determination of the matters in controversy between the plaintiff and defendant, involving the waters of Silver Creek and tributaries, without the presence of other parties before the court, and it appearing that the rights of numerous other parties were involved in the litigation, ordered that all the persons so interested, naming them, be brought in by the plaintiff and made parties to the suit; that they appear and plead on or before March 1, 1902; and that the clerk furnish the sheriff with a duly certified copy of the order for *Page 329

service, to be served by him, as such officer, within 30 days upon the persons designated. The order directed the parties appearing pursuant thereto to plead either as plaintiffs, or defendants, as their respective interests might appear, and that all appearing as defendants should answer to the complaint and interplead as to their codefendants, or any of them.

Pursuant to the court's order, Annie C. Hough thereupon asked permission to amend her amended complaint, which was granted, and on May 20th, following, filed an amended complaint, to which was added, as coplaintiffs, the names of Mary J. Kittredge, Marion Conley, W. H. Hayes, J. M. Hayes, John Hayes, A. C. Geyer, and W. H. McCall; and as defendants, S. A. D. Porter, C. D. Porter, administrator, Daisy Porter, widow, and W. F. Porter, E. A. Porter and Carl D. Porter, minor heirs of S. A. D. Porter by Daisy Porter, guardian; P. G. Chrisman, John C. Porter, and James C. Porter, his guardian; F. M. Chrisman, B. F. Lane, Jennie Lane, C. C. Jackson, Occidental Land Improvement Co., a corporation, and Chewaucan Land Cattle Co., a corporation, its grantee; P. W. Jones, C. E. McKune, Mary C. Brown, and E. D. Lutz. On May 20, 1902, the plaintiffs caused each of the defendants named to be served with a summons, etc., in practically the same form and manner as in the filing of an original suit. The amended complaint last named, omitting formal parts, is as follows:

"That plaintiff, Annie C. Hough, and her grantors have been for more than 17 years last past, and she is now, the owner in fee simple of the S. ½ of the S. ½ of section 2, the N. ½ of the N.E. ¼, and the N.E. ¼ of the N.W. ¼ of section 11, and the S.W. ¼ of the S.W. ¼ of section 1, in township 28 S., range 14 E., in Lake County, Or., containing 320 acres. That there is, and ever since the memory of man there has been, a natural stream of water, known as Silver Creek, with well-defined bed and banks, flowing a perpetual stream of water. That said Silver Creek flows from and over lands of *Page 330

defendant S. A. D. Porter, through and over said lands of plaintiff Hough, and that all her said land is riparian to said stream. That in the year 1876 plaintiff Hough's grantors diverted and appropriated, and ever since and until the year 1895 have used of the waters of said Silver Creek in irrigating those portions of said described lands not naturally irrigated by said stream, 280 inches of water, measured under a six-inch pressure, by means of dams and ditches, and by such use of said water raised large and valuable crops of grasses, which were cut and cured for hay. That at the time of said appropriation all the lands on said Silver Creek were public lands, belonging to the government of the United States. That plaintiff Mary J. Kittredge is the owner of section 36, in township 27 S., range 14 E., containing 640 acres, in Lake County, Or., and in possession thereof by purchase from the State of Oregon as school lands, having paid one third of the purchase price and having received a certificate of purchase from said State therefor, which is now in full force and effect; and that Silver Creek, after flowing over lands of defendant S. A. D. Porter, flows over all the said lands of plaintiff Kittredge, and all her said land is riparian to said stream. That plaintiff W. H. Hayes is the owner and in possession of the N.E. ¼ of the N.W. ¼, and lot 1 of section 30, and the S.E. ¼ of the S.W. ¼, and lots 3 and 4, section 19, in township 27 S., range 15 E., in Lake County, Or., containing 151.95 acres. That plaintiff John Hayes is the owner and in possession of the S.E. ¼ of the N.W. ¼ the S.W. ¼ of the N.E. ¼, and the N. ½ of the S.E. ¼, section 30, township 27 S., range 15 E., in Lake County, Or., containing 160 acres. That said Silver Creek, after flowing over lands of the defendant S.A.D. Porter, flows over all of said land of said several plaintiffs Hayes, and all their said lands is riparian to said stream. That plaintiff A. G. Geyer is the owner in fee simple of the E. ½ of the S.W. ¼ and lot 4, section 31, township 27 S., range 15 E., in Lake County, Or., containing 105.66 acres, and that said Silver Creek, after flowing over lands of defendant S. A. D. Porter, flows over all said land of plaintiff Geyer, and all said land is riparian to said stream. That plaintiff W. H. McCall is the owner in fee simple of the E. ½ of the E. ½ of section 3, township 28 S., range 14 E., in Lake County, Or., *Page 331

containing 160.04 acres, and that said Silver Creek, after flowing over land of defendant S. A. D. Porter, flows over all of said lands of plaintiff McCall, and all his said land is riparian to said stream. That plaintiff Marion Conley and his predecessors in interest, in the year 187__, settled upon and since then by patent from the United States government acquired title to, and he now is the owner in fee simple of, the W. ½ of section 12, township 28 S., range 14 E., in Lake County, Or., containing 320 acres, and during all said times has been in possession of said land. That in the year 1876 plaintiff Conley diverted and appropriated from land of the United States, and ever since and until the year 1895 has used of the waters of said Silver Creek, in irrigating his said land, 320 inches of water, measured under six-inch pressure, diverted and applied by means of dams and ditches, and by such use of said water raised large and valuable crops of grass and grain. That at the time of said appropriation all lands on said Silver Creek were public lands belonging to the government of the United States. That since the year 1895, by reason of the acts of the defendant S. A. D. Porter hereinafter complained of, the supply of water in said Silver Creek has been diminished, but that plaintiffs Hough and Conley have each year used the waters of said stream in the irrigation of their said land, to the extent of the supply of water reaching their land. That all of the lands of the parties plaintiff are arid lands and require irrigation to produce crops of value, and with irrigation produce and will produce large and valuable agricultural crops, that all said land can be irrigated from said Silver Creek, and that one inch of water, measured under six-inch pressure, is necessary per acre of said land to irrigate said land and cause the same to produce agricultural crops, during each of the months of May, June and July of each year. That in the year 1895 the defendant S. A. D. Porter wrongfully constructed, and ever since has wrongfully maintained and still maintains, and threatens to continue, a dam and head gate in the channel of said Silver Creek, above the lands of plaintiffs, at or near the S.E. corner of the S.W. ¼ of the S.W. ¼ of section 11, township 28 S., range 14 E., in Lake County, Or. That said dam and head gate during the growing season for agricultural crops diverts all the water of Silver Creek *Page 332

from its natural channel, and the same is carried off from said point of diversion in an easterly direction and entirely prevented from running down onto the lands of the parties plaintiff, and the plaintiffs are thereby deprived of the use of said water for irrigating purposes, and plaintiffs' said lands are rendered worthless by reason of the wrongful diversion of said water by defendant S. A. D. Porter, as aforesaid, and that it is now the proper season of the year to have the water of said creek flow upon plaintiffs' lands, to grow grasses for hay, and other crops, and unless the said diversion is prevented by a temporary restraining order of this court, plaintiffs will sustain great and irreparable loss in a total failure of crops. That the defendant Occidental Land Improvement Co. is a foreign private corporation, duly organized and existing. That defendants Isa M. Corum and Jewell D. Corum are minors, aged 13 and 10 years, respectively, and that no guardian has ever been appointed or is acting for them. That all the defendants have, or claim to have, some rights or interests in the waters of Silver Creek, but that the exact nature or extent of said rights or claims of the defendants are to plaintiffs unknown, and the interests, if any, of the defendants, and each of them, are inferior to the rights of plaintiffs in the waters of said stream. Wherefore plaintiffs pray for a temporary order of injunction against the defendant S. A. D. Porter, enjoining and restraining him from obstructing the natural channel of said Silver Creek, and from maintaining the dam or head gate hereinbefore mentioned, and from in any manner diverting the waters of said Silver Creek from its natural channel, and thereby or otherwise preventing the waters from running down said Silver Creek in its ancient way and volume, and plaintiffs be decreed to have a prior right and interest in the waters of said Silver Creek as against the defendants, and each of them. and are entitled to the flow of the waters of said creek to their said lands and use of said waters, to the extent as follows, measured under six-inch pressure, that is to say: Annie C. Hough, 280 inches; Mary J. Kittredge, 640 inches; Marion Conley, 320 inches; W. H. Hayes, 152 inches; John Hayes, 160 inches; J. M. Hayes, 160 inches; A. G. Geyer, 160 inches; and W. H. McCall, 160 inches — of the waters of Silver Creek. That a guardian ad litem be appointed *Page 333

for Isa Corum and Jewell D. Corum, to represent said minors in this suit; and that each of the defendants be required to set forth and show any rights or interests they may have in the waters of Silver Creek, and that upon the final determination of this suit said injunction be made perpetual. That plaintiffs have and recover their costs and disbursements herein, and have such other and further relief as to the court may appear equitable."

Answers were then filed by nearly all the defendants, substantially as follows:

S. A. D. Porter, after specifically denying the principal averments of the complaint, as an affirmative defense, in substance, avers: That the cause of suit did not accrue, as to any of the defendants, within ten (10) years from the commencement thereof. That at all times since May 7, 1889, he has been and is the owner in fee simple of the S.E. ¼ of section 11, township 28 S., range 14 E., W. M., containing 160 acres; also the S. ½ of the S.W. ¼ of section 11, in said township and range aforesaid, containing 80 acres; also the S. ½ of the N.E. ¼ of section 11, said township and range aforesaid, containing 80 acres, in Lake County, Oregon. That all these lands were valuable for agricultural purposes, and since the month of June, 1880, have been possessed, cultivated, occupied, used, and improved by defendant, from which he has annually harvested large and valuable crops, etc. That the lands through which Silver Creek, a natural stream, flows in well-defined banks and channels, are arid, and will not produce crops without irrigation. That in the month of March, 1881, defendant Porter entered upon the stream at a point about the center, on the south line of the south side of the S.W. ¼ of the S.W. ¼ of section 11, township 28 S., range 14 E., W. M., where the creek crosses the section line between sections 11 and 14, and built and placed a dam therein and constructed a ditch leading therefrom, upon the south side of the S. ½ of the S.W. ¼ of section 11, and on to the S.E. ¼ of the S. ½ of the N.E. ¼ *Page 334

of said section, in said township and range, by means of which he diverted and appropriated, as prior appropriator, 100 inches of water, conducting the same to and upon the lands described for irrigation and domestic and stock purposes. That at all times since March, 1881, until the service of the injunction herein, defendant continuously and uninterruptedly, and exclusively and with knowledge to all, and adverse to the whole world, during the irrigation season of each year, diverted and appropriated and used upon his lands, through and by means of the said ditch and dam, 100 inches of the waters of Silver Creek. That for a more convenient and proper irrigation of his land, in the month of April, 1895, he changed the point of diversion to a point about 200 yards below the dam and head gate, and constructed a ditch leading thence on to the center of the S. ½ of the S.W. ¼ of section 11, and thence on to the west side of the S.E. ¼ of said section 11, connecting it with the former ditch, from which he thereafter irrigated his premises. That at the time of the diversions alluded to, all the lands bordering upon the stream below defendant's premises were public lands, and so continued up to the time of the construction of his ditches named. That ever since the year 1870, it has been and is the general custom of the people in and upon and about Silver Creek and territory in the vicinity thereof to appropriate, divert and use, by means of dams and head gates and ditches, all the waters of Silver Creek, and such custom is general and well recognized, used and followed by the people in the locality and territory thereof, and Silver Creek was and is an open public stream therefor. "That he and his predecessors in interest herein during the period of over 22 years and more next last past, and openly, notoriously, peaceably, adversely, uninterruptedly, exclusively, continuously, under a claim of right thereto, with notice and knowledge to all, and everybody, and adversely to the whole world, diverted and appropriated *Page 335

and used, as aforesaid, 100 inches, measured under a six-inch pressure, of the waters of Silver Creek, for the irrigation of his said lands and for a beneficial and useful purpose, and that such diversion and appropriation and use aforesaid of said quantity of water of said stream is and was necessary and proper therefor during all of said time." That each of the plaintiffs, specifically and separately naming them, has no interest or right in common with each other in the waters of Silver Creek. "That the plaintiff Annie C. Hough's husband, Wm. Hough, with said plaintiff's knowledge, approval, and acquiescence and connivance, together with plaintiff W. H. McCall, and defendant Geo. H. Small, during the year 1889, and in the year 1900, up to April 15, 1900, in concert, did connive, conspire and combine to cheat and defraud the defendant S. A. D. Porter out of his rights in and to the waters of Silver Creek, and that since the 15th day of April, 1900, and up to the present time, the said parties, conspirators, have and still are contriving unlawfully and conniving, conspiring, and combining unlawfully, deceitfully and wickedly, to deprive this defendant of the waters of Silver Creek to which he is lawfully and legally entitled, and his just and lawful right thereto and therein. That the said conspiracy, among other things, consisted in and as a part of said conspiracy, that the plaintiff Hough was to commence this suit, which was the direct result of such conspiracy aforesaid, and the said defendant Geo. H. Small, under and by virtue of said conspiracy and as a part thereof, was to and did turn the water off above, and they, the conspirators and others, would all testify and claim that S. A. D. Porter did and caused it, the diversion of the waters alleged; and said McCall was to help, and if they, the said conspirators, could by such unlawful means deprive the said defendant S. A. D. Porter of the water of Silver Creek, said Small was then to turn the waters down the creek so Hough would get water which *Page 336

they were not entitled to, and then Hough and Small were to let McCall have water to which the said McCall was not entitled to, and thereby dry up this defendant's lands and drive this defendant out of the country, which the said conspirators have repeatedly threatened so to do. That if the party conspirators above named are allowed their dire way, it will ruin the defendant's lands and his home and this defendant. Wherefore, defendant demands judgment and decree: (1) That plaintiffs' said suit be dismissed, and that defendant go hence unharmed; (2) that the preliminary injunction heretofore issued herein upon the filing of this answer be dissolved; (3) for general relief, and for such other and further or other or further relief as may seem meet and equitable and as is usual in such cases; and (4) for general relief and for costs and disbursements of suit."

P. W. Jones answers, in substance, to the same effect as set out in the answer of S. A. D. Porter, except as to the description of lands and date of acquiring title thereto, and character and date of inception of water right. The description of the lands and date of acquiring title thereto is as follows: The E. ½ of the N.W. ¼, and lots 1, 2 and 3 of section 31, township 27 S., range 15 E., W. M., 155.42 acres; also, the S. ½ of the S.E. ¼, the S.E. ¼ of the S.W. ¼ and lots 3 and 4 of section 31, township 27 S., range 15 E., W. M., 169.15 acres. The lands are alleged to be riparian to Silver Creek, to which defendant's rights attached by settlement on the lands described, October 22, 1892, and the prayer is for the dismissal of the suit, and that defendant P. W. Jones be adjudged to have a reasonable use of the waters of Silver Creek, to an extent of five fourteenths of an inch per acre under a six-inch pressure, with costs, etc., and for general relief.

P. G. Chrisman and John C. Porter, by his guardian, Jas. C. Porter, demurred to the amended complaint, on the ground that it did not state facts sufficient to *Page 337

constitute a cause of suit against either of the defendants named, and for the further reason that it is uncertain, in that it cannot be ascertained therefrom where or by what means the plaintiff Hough or plaintiff Conley, or either of them, diverted or appropriated the waters of Silver Creek, or the size or the capacity of the ditch or ditches, or the location thereof. The demurrer was overruled. An answer was filed by them, which, after the usual specific denials, avers: That the cause of suit did not accrue within ten years before the commencement thereof. That John C. Porter, since July 9, 1884, has been and is the owner of the S. ½ of the N.W. ¼ of section 24, and the N.E. ¼ of section 23, township 28 S., range 14 E., W. M., containing 320 acres of land, all of which is agricultural, arable, etc., and which he has cultivated at all times since July, 1884. That P. G. Chrisman now is the owner, and he and his grantors have been at all times the owners since 1884, of the W. ½ of the S.E. ¼ and the S.E. ¼ of the S.W. ¼, and all that part of the N.E. ¼ of the S.W. ¼, except the tract upon which the town of Silver Lake is situated, section 22, township 28 S., range 14 E., W. M., containing about 140 acres of land, all of which is agricultural, requiring irrigation, etc. That all of the lands of the defendants described are arid, and during the months of May, June, July, August, September and October of each year, require irrigation in order to produce crops thereon. That Silver Creek is a natural stream of water flowing through defendants' lands in well-defined banks and channels. That in the year 1885, defendants John C. Porter and P. G. Chrisman, at a point above their lands, and by means of dams and ditches, diverted and appropriated 218 inches of water therefrom to and upon the lands described as belonging to them, for the irrigation thereof and for domestic uses. That their use of the water has been continuous since the date named, and in accordance with a general custom which, ever since the *Page 338

year 1870, has been and is in force among the people in and around Silver Creek, under which it was usual to appropriate, divert, and use the water, by means of dams, head gates and ditches, etc. That none of the plaintiffs have any interest in common with each other in the waters of Silver Creek. "That they and their predecessors in interest herein during the period of over 17 years and more next last past, and openly, notoriously, peaceably, adversely, uninterruptedly, exclusively, continuously, under a claim of right thereto, with notice and knowledge to all, and everybody, and adversely to the whole world, diverted and appropriated and used, as aforesaid, 218 inches, measured under a six-inch pressure, of the waters of Silver Creek, for the irrigation of their said lands, and for a beneficial and useful purpose, and that such diversion and appropriation and use as aforesaid of said quantity of water of said stream is and was necessary and proper therefor during all of said time. Wherefore defendants demand judgment and decree: (1) That plaintiffs' said suit be dismissed, and that defendants go hence unharmed; (2) that said defendants be adjudged to have a right to divert, appropriate and use 218 inches, measured under a six-inch pressure, of the waters of Silver Creek, through and by means of the dam and ditches described in this answer; (3) for general relief, and for such other and further or other or further relief as may seem meet and equitable and as is usual in such cases; and (4) for general relief, and for costs and disbursements of suit."

George H. Small, in his answer, after the usual specific denials for affirmative defenses alleges: That for more than ten years prior to the commencement of the suit he has been and is the owner and in possession of the E. ½ of section 9, the S. ½ and the N.W. ¼ of section 10, the W. ½ of the N.W. ¼ and the N. ½ of the S.W. ¼, and the N.E. ¼ of the S.W. ¼ and the S.W. ¼ of the N.W. ¼, of section 11, all of section 15 except the S.W. *Page 339

¼ of the N.W. ¼, the N. ½ of the N.E. ¼ of section 16, and the N.E. ¼ and the E. ½ of the N.W. ¼ of section 22, all in township 28 S., range 14 E., W. M. That the lands described were arid, requiring irrigation, and that Silver Creek is a natural stream of water flowing through the same in well-defined banks and channels. "That more than 10 years prior to the commencement of this suit, and while all of the lands upon said Silver Creek were owned by the United States or the State of Oregon, this defendant appropriated from the said lands of the United States and the State of Oregon and diverted and carried away from said Silver Creek 800 inches of the waters of said stream (computed by miner's measurement under a six-inch pressure), by means of dams and ditches, and carried the same to and upon his said lands, and during all of said time has used all of said water in irrigating said lands, and has so used, occupied and possessed said 800 inches of water in an open, notorious, conspicuous and continuous manner, during all of said time, claiming to own the same as against all the world, and that all of said water is and was necessary for the successful irrigation of said lands so as to cause crops to grow and mature thereon. That the diversion, use and appropriation of said water by the defendant, as aforesaid, was made long prior to any use, diversion or appropriation of any of the waters of said stream by either or any of the plaintiffs or defendants, and long prior to any ownership or occupation of any of the lands upon said stream by either or any of the plaintiffs or defendants or their grantors. Wherefore the defendant prays that it be decreed herein that this defendant is the absolute owner of 800 inches, miner's measurement under a six-inch pressure, of the waters of said Silver Creek; that this defendant have judgment for his costs and disbursements herein; and for such other and further relief as to the court may seem just and equitable." *Page 340

B. F. Lane and Jennie Lane, after the usual specific denials, aver: That the cause of suit in favor of each of the plaintiffs did not accrue within ten years before the commencement of this suit. That B. F. Lane and Jennie Lane, husband and wife, and B. F. Lane is the owner, and has been since March, 1890, of the N.E. ¼, of section 18, township 28 S., range 15 E., W. M., containing 160 acres; and, also, the E. ½ and lots 1 and 2 of the N.W. ¼ of section 18, township 28 S., range 15 E., W. M., containing 159.96 acres of agricultural land, requiring irrigation to make it productive. That from and after March, 1890, defendant has possessed, cultivated, occupied, used and improved all of said lands, and during all the time since has harvested annually therefrom large and valuable crops, etc. That the irrigation season in the vicinity of the land is from April to October, inclusive, during which time irrigation is necessary to the productiveness of said premises. That the lands described are situated upon Bunyard Branch of Silver Creek, upon which they are riparian owners. That the branch referred to, having flowed in well-defined channels through the premises described, from time immemorial, and by reason of the natural flow, seepage and percolation of the Bunyard Branch through its lands, they are irrigated, moistened, made fertile and valuable, and defendants are entitled to a reasonable use of the waters of said stream by reason of their riparian ownership of the lands described, and need the waters thereof for irrigation and "stock water." That four fifteenths of an inch, measured under a six-inch pressure, is necessary per acre for such irrigation; the same being a reasonable and necessary amount thereof. That each of the plaintiffs have no interest in common with the other in the subject-matter of the suit. A decree is demanded: (1) That the suit be dismissed; (2) that defendants be adjudged a reasonable use of the waters of Silver Creek to an extent of four fifteenths of an inch of water per *Page 341

acre; and (3) for general relief, such as may be deemed equitable, etc.

Lucinda Egli, after the usual denials and averments in reference to the character of the land that requires irrigation, etc., alleges: "That for more than ten years prior to the commencement of this suit defendant and her grantors have been the owners and in possession of the following described real estate: The S.W. ¼ of section 28, and the E. ½ of the S.E. ¼ of section 29, and the S. ½ of the N.W. ¼ and the N.W. ¼ of the S.W. ¼, and the N.W. ¼ of the N.W. ¼ of section 33, all in township 28 S., range 14 E., W. M. That more than ten years prior to the commencement of this suit, while all the lands above defendant and all the lands claimed by the plaintiffs were government lands or belonging to the State of Oregon, the defendant appropriated from the said lands of the United States and the State of Oregon, and diverted and carried away from said stream, about 200 inches, miner's measurement, under a six-inch pressure, of the waters of said stream by means of dams and ditches, and carried the same to and upon defendant's said lands, and there used the same and all thereof for the purposes of irrigation, and has continued to so use all of said water openly, notoriously, continuously during all of said time, claiming the right so to do as against all the world without interruption or protest from any one, and all of the said water was and is necessary for said purposes. That said diversion and use of said water by the defendant was made prior to any diversion or use of the waters of said Silver Creek by any of the plaintiffs or defendants or their grantors or predecessors in interest. Wherefore the defendant prays that it be decreed herein that this defendant is the absolute owner of 200 inches of water of said Silver Creek, miner's measurement, under a six-inch pressure; that this defendant have judgment for her costs; and for such other and further relief as to the court seems just and right." *Page 342

John C. Porter, by his guardian, Jas. C. Porter, after the overruling of a demurrer to the complaint, answered, in substance, the same as S. A. D. Porter, and for an affirmative defense alleges that on December 6, 1900, in Lake County, Oregon, John C. Porter was adjudged insane, and Jas. C. Porter appointed his guardian; that John C. Porter is the owner, and he and his grantors since April, 1873, have owned the N. ½ of section 14, township 28 S., range 14 E., W. M., containing 320 acres of land; that at all times since April, 1874, he and his grantors have cultivated, occupied and improved the lands described, annually harvesting large crops therefrom by means of irrigation, without which the lands would be worthless; that the lands described are riparian to Silver Creek and Bunyard Branch thereof; that Bunyard Branch, when unobstructed, flows in its natural channel through his land and naturally irrigates the same, and from time immemorial has, in well-defined banks and channels, flowed through his premises and by reason of such natural flow, seepage and percolation, has irrigated the greater portion of the lands described; that defendant uses and needs the waters of said stream for irrigation and stock water, and four fifteenths of an inch of water per acre, measured under a six-inch pressure, is necessary and reasonable for the irrigation of the said lands; that at all times, except when interrupted by dams and head gates and ditches leading therefrom and placed therein by defendant and his grantors for the purpose of irrigation upon the premises, the waters of Silver Creek and branches, in their natural channels, flow upon the premises described, by reason of which seepage and percolation the dams, head gates and ditches leading therefrom irrigate, moisten and make fertile and valuable a large portion of defendant's land, and all of which are necessary for irrigation, to the extent of four-fifteenths of an inch per acre, and that none of the plaintiffs have any interest or right in common with *Page 343

each other. A decree is demanded: (1) That the suit be dismissed; (2) that defendant be adjudged to have a reasonable use of the waters of the main branch of Silver Creek, to the extent of four fifteenths of an inch of water per acre; (3) that defendant be adjudged a reasonable use of the waters of Bunyard Branch in the same amount; (4) for general relief, such as may be deemed equitable, etc.; (5) that it be adjudged and decreed that Silver Creek divides as alleged, and forms what is known as the Main Branch and Bunyard Branch, and that Bunyard Branch has at all times flowed and now flows one third of the waters of Silver Creek, and that it be permitted to continue in the same proportion without interruption or diminution in the proportions averred.

F. M. Chrisman, after the usual denials, as an affirmative defense, avers: That the cause of suit in favor of each of the plaintiffs did not accrue within ten years before the commencement thereof; that at all times since February 21, 1890, defendant has been and is the owner of the S.E. ¼ of section 12, township 28 S., range 14 E., W. M., containing 160 acres of land, all of which are agricultural in character and required irrigation to make them productive, and are situated on the banks of, and are riparian to, Bunyard Branch of Silver Creek, and during the months of from April to October, inclusive, are necessary for the irrigation of the lands described; that none of the plaintiffs have any interest or right in common with each other in or to the waters of Silver Creek, or its branches. A decree is demanded that the suit be dismissed, that defendant be adjudged to have a reasonable use of the waters of Silver Creek, to an extent of four fifteenths of an inch per acre, and for general relief.

Mary C. Brown, after the usual denials, complains that the cause of suit did not accrue within ten years before the commencement thereof; that at all times since November 21, 1892, defendant has been and is the owner of the S.E. ¼ of section 31, township 27 S., range 15 *Page 344

E., W. M., containing 160 acres of land, all of which is valuable agricultural land, arid in character, and requiring irrigation from April to October of each year to make the lands productive, which lands are situated upon, and riparian to, Silver Creek; and that none of the plaintiffs have any interest or right in common with each other to the waters of said stream; and prays for a decree, to the effect that the suit be dismissed, that defendant be awarded, as a reasonable use of the waters of the stream, five fourteenths of an inch of water per acre, and for general relief.

C. C. Jackson, after the usual denials, says: That the cause of suit did not accrue within ten years before its commencement; that he at all times since the year 1886 was, has been and is the owner of the N.E. ¼, of section 12, township 28 S., range 14 E., W. M., containing 160 acres of land, all of which is valuable agricultural land, requiring irrigation during the months of April to October of each year to make them productive; that it is situated upon, and riparian to, Conley Branch of Silver Creek, the seepage and percolation from which serves to irrigate, moisten and make fertile and valuable the greater portion of the lands named, and by reason of which defendant is entitled to a reasonable use of the waters of the stream for irrigation and domestic purposes, to the extent of four fifteenths of an inch per acre; and that none of the plaintiffs have any interest or right in common with each other to the waters of Silver Creek or its branches. A decree is asked for dismissal of the suit, and that defendant be awarded four fifteenths of an inch of water per acre, and for general relief.

C. E. McKune, for answer, after the usual denials, alleges: That the cause of suit did not accrue within ten years before its commencement; that at all times since February 28, 1900, defendant has been and is the owner of the N.E. ¼ of section 81, township 27 S., range 14 E., W. M., containing 160 acres, all of which are *Page 345

agricultural lands, arid in character, and requiring irrigation to make them productive, and are situated upon, and riparian to, Silver Creek, which stream naturally irrigates portions of the lands named, and by reason of such natural flow, seepage and percolation, the greater portion thereof are irrigated and made fertile and valuable, for which defendant is entitled to a reasonable use of the waters of the stream by reason of his riparian ownership, to the extent of five fourteenths of an inch of water per acre; that none of the plaintiffs have any interest or right in common with respect to each other in respect to the subject-matter of the suit; and asks for a decree to the effect that the suit be dismissed, and defendant be awarded five fourteenths of an inch of water per acre, and for general relief.

The Occidental Land Improvement Co., for answer, after the usual denials, alleges: That the cause of suit in favor of plaintiffs did not accrue within ten years before its commencement. That defendant is a corporation, and at all times since the year 1874 defendant and its grantors have been and are the owners of certain lands in Lake County, Oregon, particularly described as follows: First tract, No. 1, to wit: The S. ½ of the N. ½, S. ½ of section 16; the N. ½, N. ½ of the S. ½, and the S. ½ of the S.W. ¼ of section 21; the W. ½ of the N.W. ¼, section 22, and the S. ½ of the N.E. ¼, the N.W. ¼ of the S.E. ¼, and the N.E. ¼ of the S.W. ¼ of section 20 — all in township 28 S., range 14 E., W. M., containing 1,320 acres. And the second tract, No. 2, to wit: The N. ½ and the N. ½ of the S. ½ of section 2, in township 28 S., range 14 E., W. M.; the S. ½ of the S. ½, the N.E. ¼ of the S.E. ¼, and the E. ½ of the N.E. ¼ of section 35; the S.E. ¼ of the S.E. ¼ of section 34; and the S. ½ of the S.E. ¼, section 26 — all in township 27 S., range 14 E., W. M., containing 880 acres of land. That all the lands described are agricultural in character, requiring irrigation to make them productive, and since *Page 346

the year 1874 they have been cultivated, occupied, used and improved, and crops annually harvested therefrom, and require irrigation from April to October of each year to make them productive. That the lands are situated upon, and riparian to, Silver Creek. That in the year 1875 the defendant corporation's grantors diverted and appropriated, and at all times since have appropriated and used of the waters of Silver Creek in the irrigation of the portion of lands described in tract No. 1, not naturally irrigated by said stream, 586 inches, under a six-inch pressure, by means of dams and ditches, by the use of which valuable crops have been produced thereon, and at the time of the appropriation referred to, all the lands on Silver Creek were public lands belonging to the government of the United States and to the State of Oregon. That none of the plaintiffs have any interest or right in common to the waters of Silver Creek with all or any of the other plaintiffs. A decree is demanded to the effect that the suit be dismissed; that defendant corporation be adjudged a reasonable use of the waters of Silver Creek to the extent of eight fourteenths of an inch of water per acre on all the lands possessed by it; and that the right to the use of the water to the extent named be decreed superior to any right or claim by defendants or either of them, and for such general relief as may be deemed just and equitable, etc.

E. K. Henderson, after the usual denials, alleges: That for more than ten years prior to the commencement of the suit defendant has been and is the owner and in possession of all of section 1, township 28 S., range 14 E., except the S.W. ¼ of the S.W. ¼, all of sections 6 and 7, and the W. ½ of section 8, and lots 1, 2, 3, 8 and 9, in section 17, township 28 S., range 15 E., W. M., all of which lands are meadow and grass lands and arid in character, requiring irrigation to make them productive, and are situated upon, and riparian to, Silver Creek, requiring one inch of water per acre, miner's measurement, for the *Page 347

proper irrigation thereof, for which a decree is demanded that defendant be decreed and entitled to the use of 2,350 miners' inches of the waters of Silver Creek for the use of the lands described, and for general relief.

Geo. Durand, for answer, after the usual denials, admits the "acts of the defendant S. A. D. Porter as alleged in the complaint, and the effect thereof," and avers that for more than ten years prior to the commencement of this suit defendant and his grantors have been the owners, and in possession, of the S.E. ¼ of the S.W. ¼ of section 18, and the N. ½ of the N.W. ¼, and the S.W. ¼ of the N.W. ¼, and the S.W. ¼, and the S. ½ of the S.E. ¼ of section 19, and the N.E. ¼ and the E. ½ of the N.W. ¼ of section 30, in township 30 S., range 14 E., W. M., all of which lands are agricultural in character, requiring irrigation to make them productive, etc., and are situated upon, and riparian to, Silver Creek; that more than ten years prior to the commencement of this suit, when all the lands bordering upon the stream were the property of the United States and of the State of Oregon, defendant appropriated and diverted from Silver Creek, for the irrigation of the premises, 250 inches of water, and has continued so to use all of that amount openly, notoriously and continuously, without interruption, claiming the right to do so as against all the world; that the use thereof was necessary for irrigation purposes, and was made prior to any diversion or use of any of the waters of the stream by any of the plaintiffs or defendants or their grantors or predecessors in interest. And demands a decree to the effect that he is the absolute owner of 250 inches of the waters of Silver Creek, and for general relief.

E. D. Lutz, for answer, after the usual denials, avers that he is the owner of the E. ½ of the N.E. ¼ and the W. ½ of the N.E. ¼, and the E. ½ of the N.W. ¼ of section 15, township 28 S., range 14 E., W. M., and the N.E. ¼ of section 10, township 28 S., range 14 E., W. M., *Page 348

all in Lake County, Oregon, containing 400 acres of land, and has been such owner at all times since 1890; that the lands described are arid in character, requiring irrigation to make them productive, and are situated upon, and riparian to, Silver Creek; that defendant and his grantors, by means of dams and ditches, have diverted, used and appropriated large quantities of water from Silver Creek in the irrigation of the premises described for more than fifteen years next before the commencement of this suit. And demands a decree to the effect that he be adjudged to have the right to take from the stream a sufficient quantity of water for the irrigation of his land, and for general relief.

Walter C. Buick, Corinna Buick, Lulu Corum La Brie, Isa M. Corum, a minor, by L. F. Conn, guardian ad litem , Jewell D. Corum, a minor, by L. F. Conn, guardian ad litem , and J. M. Small, after the usual denials, in substance aver: That at all times since the ___ day of ___, 1884, Walter C. Buick and his grantors have been the owners and in possession of and entitled to the possession of the S.W. ¼ of section 14, township 28 S., range 14 E., W. M., which are naturally dry and arid lands, and, without artificial irrigation, are unproductive. That the remainder of the lands, viz., the N.W. ¼ of the S.W. ¼, and the N. ½ of the N.E. ¼ of the S.W. ¼ of said section 14, are meadow lands, but of such character that a flow of one inch of water per acre is necessary for the proper irrigation thereof, requiring 160 inches to irrigate the entire premises during the months of May, June and July, which amount is a reasonable use for the purposes named. That for more than ten years prior to the commencement of the suit, while all the lands on Silver Creek and its various branches were owned by the United States and the State of Oregon, defendant Buick and his grantors, by means of dams, ditches, etc., diverted and appropriated from Silver Creek 250 inches of the waters of the stream to and upon said lands, and during all of *Page 349

the time mentioned have so used, occupied and possessed 250 inches thereof in an open, notorious, conspicuous and continuous manner, claiming to own the same against the world, all of which was and is necessary for the successful irrigation of the property described, and all of which diversion, use and appropriation by defendant and his grantors were made prior to any use, diversion or appropriation thereof by either or any of the plaintiffs or defendants, and prior to any ownership or occupancy of any lands on the stream by either or any of the plaintiffs or defendants and their grantors, except the defendants Corinna Buick, Lulu Corum La Brie, Isa M. Corum and Jewell D. Corum, and their grantors, and the defendant J. M. Small and his grantors; they and each of them and their grantors having appropriated and diverted, in conjunction and simultaneously with this defendant and his grantors, certain of the waters of said stream. That such use of all the water by defendant Walter C. Buick and his grantors has been uninterrupted and exclusive and adverse to all the world all of said time. That at all times since 1884 defendant Corinna Buick and her grantors have been the owners, and in possession and entitled to the possession, of the S.E. ¼ of section 14, township 28 S., range 14 E., W. M., all of which, except the N. ½ of the N. ½ of the S.E. ¼ of said section 14, are naturally meadow lands, but of such character as to be unproductive and unprofitable without irrigation, and all the lands mentioned are situated upon, and riparian to, Silver Creek, and require one inch per acre of the waters thereof for their proper irrigation, making necessary, in the aggregate, 160 inches during the months of May, June and July of each year for their proper irrigation. That for more than ten years prior to the commencement of the suit, and while all the lands on Silver Creek and its various branches were public lands of the United States or property of the State of Oregon, defendant Corinna *Page 350

Buick and her grantors diverted and appropriated from the stream at a point above their premises, by means of dams, ditches, etc., to and upon the property described, and during all of the time mentioned she and her grantors have used all of the waters in the irrigation thereof and have so used, occupied and possessed 250 inches of water in an open, notorious, conspicuous and continuous manner, during all of said period, and claiming to own the same as against the world, and that all is necessary for the successful irrigation of said lands to the growing and maturing of crops thereon. That all of the diversion and appropriation was prior to that of the diversion of any of the waters of Silver Creek by either or any of the plaintiffs or defendants, and long prior to any ownership or occupancy of any other lands upon the stream by either or any of the defendants or their grantors, excepting the defendants Walter C. Buick, Isa M. Corum, Lulu Corum La Brie, Jewell D. Corum and J. M. Small, and their grantors, and they and each of their grantors have appropriated and diverted, in conjunction and simultaneously with this defendant and her grantors, certain of the waters of said stream, and such use of all the waters by defendant Corinna Buick and her grantors has been uninterrupted, exclusive and adverse to all the world during all of said time. That Isa M. Corum, Jewell D. Corum and Lulu Corum La Brie are tenants in common and joint owners of the W. ½ and the N. ½ of the N.E. ¼ of section 13, and the N. ½ of the N.E. ¼ of section 24, township 28 S., range 14 E., W. M., and they and their grantors at all times since the ___ day of ___, 1884, have been the owners of said premises. This is followed by similar averments to those contained in the answer of Walter Buick and Corinna Buick, except that they claim in the aggregate 480 inches, miner's measurement, of the waters of the stream for the irrigation of the premises, during the months of May, June and July, and ten years' adverse possession to the use of 250 inches of *Page 351

the waters of the stream, and that their diversion and use and appropriation is prior to that of any of the plaintiffs or defendants, except Walter Buick, Corinna Buick and J. M. Small, as to whom it is averred the appropriation and diversion was made in conjunction and simultaneously. That J. M. Small and his grantors have been the owners and in possession at all times since the ___ day of ___, 1884, of the S. ½ of the N.E. ¼, and the S.E. ¼ of section 13, and the N. ½ of the N.E. ¼, and the S.E. ¼ of the N.E. ¼ of section 24, township 28 S., range 14 E., W. M., and the S.W. ¼ of section 18, and the N.W. ¼ of section 19, township 28 S., range 15 E., W. M., all of which lands are agricultural in character and situated upon the channels of Silver Creek and its branches, as to which they are riparian and require one inch of water per acre under six-inch pressure for the proper irrigation therof, during the months of May, June and July of each year. This is followed by an allegation of ten years' adverse possession to the extent of 250 inches of the waters of said stream; that the use, appropriation and diversion thereof is prior in time and superior in right to the plaintiffs or defendants, and long prior to any ownership or occupancy of any of the lands upon said stream by either or any of the plaintiffs or defendants or their grantors, except Walter C. Buick, Corinna Buick, Isa M. Corum, Lulu Corum La Brie and Jewell D. Corum and their grantors, whose appropriation is alleged to have been made in conjunction and simultaneous with that of J. M. Small. A decree is demanded by each of the defendants to the effect that they be awarded a prior right and interest in the waters of Silver Creek as against plaintiffs and all of the other defendants and each of them to the flow of the waters of Silver Creek to their lands, as follows: To Corinna Buick, 250 inches; Isa M. Corum, Lulu Corum La Brie, Jewell D. Corum, as tenants in common and as prior appropriators, 250 inches; J. M. Small, as prior appropriator, 250 inches; *Page 352

Walter C. Buick, as riparian proprietor, 160 inches; defendant Corinna Buick, as riparian proprietor, 160 inches; defendants Isa M. Corum, Lulu Corum La Brie and Jewell D. Corum, as tenants in common and as riparian proprietors, 480 inches; defendant J. M. Small, as riparian proprietor, 680 inches, of the waters of Silver Creek and its branches.

To each of the answers of the several parties named, plaintiffs filed a reply, and as between themselves defendants proceeded as follows:

Geo. H. Small, for answer to the affirmative matter contained in the answer of S. A. D. Porter, admits that in the year 1895 S. A. D. Porter constructed a dam in the channel of Silver Creek at the point claimed, by which he conducted water from the stream upon the S. ½ of the S.W. ¼, of section 11, but denies that it was constructed for a more convenient or any use of the water which had been theretofore appropriated by him, or that it constituted a change in the point of diversion which had been previously made, and denies that he at all times since the year 1881, or at any time except since 1895, diverted or appropriated or used, adversely or otherwise, upon his lands or otherwise through said or any ditches, 100, or any other number of, inches of the waters of the stream, and denies specifically the other affirmative allegations of the answer, and demands the same affirmative relief as in his "first original answer."

E. K. Henderson and Lucinda Egli, for answer to the affirmative averments in the answers of S. A. D. Porter to the amended complaint, plead, in effect, and ask the same relief as in the answer thereto of Geo. H. Small.

Geo. H. Small, Geo. Durand, Lucinda Egli and B. K. Henderson, for answer to the affirmative averments of the answer to P. G. Chrisman and Jno. C. Porter. deny the affirmative averments therein.

S. A. D. Porter, for response to the affirmative matter in the answer of Geo. H. Small, denies all the allegations, *Page 353

except to admit that at the time of the commencement of the original suit in May, 1900, Small had diverted from the main channels of Silver Creek all the waters thereof, and was then diverting and conveying the same from defendant's lands, and at the time of the commencement of the suit, and for more than one month prior thereto, Small had been entirely depriving defendant of all the waters of the stream, and that during a period of five years immediately prior thereto, Geo. H. Small had at various times diverted large quantities of water from the stream by means of dams and ditches, but denies that any such diversion has been continuous, uninterrupted, or that at the time of any diversion or appropriation of the waters of Silver Creek by him all the lands bordering upon the stream were public lands or the property of the State of Oregon, or that any appropriation or diversion by defendant was prior to the occupation or possession of the lands occupied by defendant along Silver Creek, and prays that Geo. H. Small take nothing by reason of the separate allegations of his answer.

P. W. Jones, P. G. Chrisman, John C. Porter, by his guardian Jas. C. Porter, B. F. Lane and Jennie Lane, F. M. Chrisman, Mary C. Brown, C. C. Jackson, C. E. McKune, Occidental Land Improvement Co. and E. D. Lutz, for response to the affirmative averments in the answer of Geo. H. Small, on information and belief, specifically denied them.

Geo. H. Small, Lucinda Egli, E. K. Henderson and Geo. Durand answer the affirmative averments in the answer of B. F. Lane and Jennie Lane, and, after denial thereof, allege "that the stream or channel designated as `Bunyard Branch' is an artificial channel and was first constructed about nine years ago, when it was a very small ditch conveying a small amount of water, and since said date, by artificial means and by the flow of water through the said channel, it has become greatly enlarged so that the said `Bunyard Branch' now carries about five times as much *Page 354

water as it did when it was first built," and pray that it be decreed that B. F. Lane and Jennie Lane have no interest in the waters of said stream, and pray for the relief demanded in their first answer.

B. F. Lane and Jennie Lane move to strike out the separate and several answers of defendants Geo. H. Small and Lucinda Egli to their answer to the amended complaint. as unauthorized by law or the rules of practice in equity, and as sham, frivolous and irrelevant, and filed their separate and several demurrers to the same answer, on the grounds: "(1) That such `does not state facts sufficient to constitute any cause of suit against the defendants B. F. Lane and Jennie Lane'; (2) that it "does not state facts sufficient to constitute a defense to the affirmative matter set out in the answer of said B. F. Lane and Jennie Lane'; (3) that it `does not state facts sufficient to constitute any cause of counterclaim or owner's complaint against the defendants B. F. Lane and Jennie Lane'; and (4) that `it now appears upon the face of the complaint, and upon the answer of the defendants B. F. Lane and Jennie Lane, and the answer of the defendant * * and the further and separate answer of B. F. Lane and Jennie Lane, that there is a misjoinder of parties defendant, as well as a misjoinder of parties plaintiff, and that the defendant * * cannot obtain relief against these defendants in this suit.'" The motions and demurrers were overruled.

S. A. D. Porter, F. M. Chrisman, C. C. Jackson, B. F. Lane and Jennie Lane, Jno. C. Porter, by his guardian Jas. C. Porter, Mary C. Brown, C. E. McKune, B. D. Lutz, P. W. Jones, Occidental Land Improvement Co., a corporation, and P. G. Chrisman, responding to the affirmative averments in the answer of Lucinda Egli, specifically denied the material portions thereof.

Geo. H. Small, Geo. Durand, Lucinda Egli and E. K. Henderson, for response to John C. Porter's answer, specifically denied the material averments. *Page 355

Geo. H. Small, Lucinda Egli, E. K. Henderson and Geo. Durand specifically denied the affirmative averments in the answer of F. M. Chrisman, which answer Chrisman moved to strike out as sham, frivolous and irrelevant, also demurring on the grounds that they did not state sufficient facts to constitute a cause of suit or counterclaim against him, and as showing a misjoinder of parties defendant, which the court overruled.

Geo. H. Small, Lucinda Egli, E. K. Henderson and Geo Durand responded to the affirmative averments in the answer of Mary C. Brown, specifically denying the material portions thereof, as to which motion a demurrer was filed, the same as by F. M. Chrisman, and overruled by the court, and separate answers were filed by the same Parties to the affirmative averments in the answer of C. C. Jackson, specifically denying the material portions of his answer, to which Jackson demurred, and the demurrer was overruled. The same parties answered and denied specifically the averments in the answer of C. E. McKune, which was unsuccessfully attacked by a motion and demurrer.

Walter C. Buick, Corinna Buick, Lulu Corum La Brie, Isa M. Corum by her guardian ad litem L. F. Conn, Jewell D. Corum by her guardian ad litem

L. F. Conn, and J. M. Small filed their separate and several answers, and the defendants Geo. H. Small, Geo. Durand, Lucinda Egli, E. K. Henderson, S. A. D. Porter, B. F. Lane and Jennie Lane, P. G. Chrisman, Jno. C. Porter by his guardian Jas. C. Porter, F. M. Chrisman. P. W. Jones, Mary C. Brown, C. E. McKune, C. C. Jackson, Occidental Land

Improvement Co., a corporation, and E. D. Lutz jointly answered, specifically denying each of the averments, and putting in issue all of the new matter set up in each of the answers of defendants Geo. H. Small, Lucinda Egli, E. K. Henderson and Geo. Durand, to the answer of the Occidental Land Improvement Co., specifically denying each of its material averments. *Page 356

S. A. D. Porter, F. M. Chrisman, C. C. Jackson, John C. Porter by his guardian Jas. C. Porter, Mary C. Brown, C. E. McKune, E. D. Lutz, P. W. Jones, Occidental Land Improvement Co., a corporation, Jno. C. Porter and P. G. Chrisman specifically denied the affirmative matter in the answer of defendant Geo. Durand.

Defendants Geo. H. Small, Lucinda Egli, E. K. Henderson and Geo. Durand also specifically denied the affirmative averments of the answer of E. D. Lutz.

On October 20, 1902, defendants Geo. Durand, Geo. H. Small, Lucinda Egli, E. K. Henderson, F. M. Chrisman, C. C. Jackson. B. F. Lane and Jennie Lane filed a written stipulation as to the intention and effect of certain pleadings, as follows: "Be it remembered that it is hereby stipulated and agreed by and between counsel, A. S. Hammond, appearing for defendants George Durand, George H. Small, Lucinda Egli and E. K. Henderson; and counsel W. J. Moore and Spencer Raker, appearing as counsel for defendants F. M. Chrisman, C. C. Jackson, B. F. Lane and Jennie Lane: That each and all of the statements and paragraphs set out in each one and all of the answers filed or presented by said attorney A. S. Hammond for each or either of said defendants, stating or alleging to the effect that the stream or channel described as the `Bunyard Branch' is an artificial channel, and was constructed about nine years ago, and to the effect that the so-called `Conley Branch' is not a natural stream of water, but was caused by cutting a ditch, shall be taken, considered and treated only as denials, and not as allegations of new matter calling for a denial or reply."

On October 24, 1904, judgment by default for want of answer or other appearance was taken as to L. Heusmand, Morris Ranner, John Partin, Jr., L. P. Klippel, Emil Egli, Henry Egli, Martie Ward, Angeline West, Mary Small, Jas. M. Martin, J. M. Sherer, Maude Small, J. Hall, C. D. Buick, R. E. Smith, J. A. Smith, J. C. Harrow and F. F. McCarty. A voluntary nonsuit was taken *Page 357

as to A. C. Geyer, John Hayes and J. M. Hayes. The testimony was taken on the foregoing issues upon which, with the testimony first taken, the cause was submitted to the court, and a decree rendered, which, omitting formal parts, is as follows:

"It is hereby ordered, adjudged, and decreed:

That the defendant S. A. D. Porter be and he is hereby perpetually enjoined from in any manner diverting or interfering with the flow in said Silver Creek of the amount of water which this decree grants to the plaintiff Annie C. Hough.

That the said plaintiff Annie C. Hough is the owner in fee simple of the following described lands, to wit: The S. ½ of the S. ½ of section 2, the N. ½ of the N.E. ¼ and the N.E. ¼ of the N.W. ¼ of section 11, the S.W. ¼ of the S.W. ¼ of section 1, township 28 S., range 14 E., W. M., in Lake County, Or., containing 320 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said lands; that said lands are riparian thereto; that the predecessor in interest of plaintiff Annie C. Hough, in the year 1878, appropriated, and said Annie C. Hough and her predecessors in interest in said land have ever since used, 240 inches of the water of Silver Creek, measured under six-inch pressure, and the same was and is a reasonable and necessary use of said water, for the irrigation of said land, and her right to the use of said water is superior and prior to the rights of all others in said stream, save the rights as herein decreed to George H. Small and Lucinda Egli.

That the plaintiff Mary J. Kittredge is the owner in fee simple of the following described lands, to wit: All of section 36, township 27 S., range 14 E., containing 640 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said lands; that said lands are riparian thereto; that the said Mary J. Kittredge, as such riparian owner, is entitled to the use of 480 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the water for the irrigation of her said lands; said plaintiff's right to the use thereof being subsequent and inferior to the right of the defendants S. A. D. Porter, George H. Small, and plaintiffs Annie C. Hough and Marion Conley, to the *Page 358

use to the extent granted in this decree of the said waters of said Silver Creek, measured in like manner.

That the plaintiff Marion Conley is the owner in fee simple of the following described lands, to wit: The W. ½ of section 12, township 28 S., range 14 E., W. M., containing 320 acres of land, in Lake County, Or. That in the year 1880, said plaintiff appropriated and has ever since used 250 inches of the waters of said Silver Creek, measured as aforesaid; that said Marion Conley, as such appropriator, is entitled to the use of 250 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said lands, aforesaid; but that said plaintiff's right to the use is subsequent and inferior to the uses, to the extent granted by this decree, of plaintiff Annie C. Hough, defendants George H. Small, Lucinda Egli, John C. Porter, and the Occidental Land Improvement Co.; that said water has been and should be diverted through what is known as the `Conley Ditch.'

That the plaintiff W. H. McCall is the owner in fee simple of the following described lands, to wit: The E. ½ of the E. ½ of section 3, township 28 S., range 14 E., W. M., containing 160.04 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said lands; that 120 acres of said lands are riparian thereto; that the said W. H. McCall, as such riparian owner, is entitled to the use of 60 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said waters for the irrigation of his said lands; that said use is subsequent and inferior to all of the appropriations herein set out, to the extent granted by this decree.

That the defendant S. A. D. Porter is the owner in fee simple of the following described lands, to wit: The S.E. ¼, the S. ½ of the S.W. ¼, the S. ½ of the N.E. ¼ of section 11, township 28 S., range 14 E., W. M., containing 320 acres of land, in Lake County, Or. That the said defendant, in the year 1883, appropriated, and has ever since used, 100 inches of the waters of Silver Creek. measured as aforesaid; that the said S. A. D. Porter, as such appropriator, is entitled to the use of 100 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said lands aforesaid; but that *Page 359

said defendant's right and use is subsequent and inferior to the rights of plaintiffs Annie C. Hough and Marion Conley and defendants Lucinda Egli, George H. Small, Occidental Land Improvement Company and J. C. Porter, to the extent granted by this decree.

That the defendant Lucinda Egli is the owner in fee simple of the following described lands, to wit: The S.W. ¼ of section 28 and the E. ½ of the S.E. ¼ of section 29, and the S. ½ of the N.W. ¼, and the N.W. ¼ of the S.W. ¼, and the N.W. ¼ of the N.W. ¼ of section 33, in township 28 S., range 14 E., W. M., containing 400 acres of land, in Lake County, Or. That in the year 1878, said defendant appropriated and diverted 200 inches of the waters of said Silver Creek, measured as aforesaid, and has ever since used the same; that the said Lucinda Egli, as such appropriator, is entitled to the use of 200 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of her said lands aforesaid; but that said defendant's right and use is subsequent and inferior to the rights, to the extent granted in this decree, of defendants George H. Small, Occidental Land Improvement Company, and John C. Porter.

That the defendant George H. Small is the owner in fee simple of the following described lands, to wit: The E. ½ of section 9; the S. ½ and the N.W. ¼ of section 10; the W. ½ of the N.W. ¼, and the W. ½ of the S.W. ¼ of section 11; the N.E. ¼ of the S.W. ¼, the S.W. ¼ of the N.W. ¼ of section 11; all of section 15, excepting the S.W. ¼ of the N.W. ¼; the N. ½ of the N.E. ¼ of section 16; the N.E. ¼ and the E. ½ of the N.W. ¼ of section 22 — all in township 28 S., range 14 E., W. M., containing 1,960 acres of land, in Lake County, Or. That the said defendant, in the year 1878, appropriated and has ever since used 650 inches of the waters of said Silver Creek, measured as aforesaid; that said George H. Small, as such appropriator, is entitled to the use of 650 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said lands aforesaid; that said appropriation was and is prior to the rights of all of the other parties herein.

That the defendant John C. Porter is the owner in fee simple of the following described lands, to wit: The N. ½ *Page 360

of section 14, township 28 S., range 14 E., W. M., containing 320 acres of land in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon the said lands; that said lands are riparian thereto; that said John C. Porter, as such riparian owner, is entitled to the use of 100 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said land; 75 inches of the said waters, measured as aforesaid, to be diverted from the said Bunyard Branch of said Silver Creek, and the remaining 25 inches from the main channel of said Silver Creek; that said use is subsequent and inferior to the appropriation of Marion Conley and George H. Small and Annie C. Hough, to the extent granted in this decree.

That the defendant E. K. Henderson is the owner in fee simple of the following described lands, to wit: All of section 1, township 28 S., range 14 E., excepting the S.W. ¼ of the S.W. ¼; all of sections 6 and 7, and the W. ½ of section 8, lots 1, 2, 3, 8 and 9, section 17 — all in township 28 S., range 14 E., W. M., containing ___ acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon the said lands; that 640 acres of said land is riparian to said Silver Creek; that the said E. K. Henderson, as such riparian owner, is entitled to the use of 170 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said lands; that said use is subsequent and inferior to all of the rights acquired by appropriation, to the extent granted in this decree.

That the defendant P. W. Jones is the owner in fee simple of the following described lands, to wit: The E. ½ of the N.W. ¼ and lots 1, 2 and 3 of section 31, in township 27 S., range 15 E., W. M., containing 155.42 acres; also the S. ½ of the S.E. ¼, the S.E. ¼ of the S.W. ¼, and lots 3 and 4 of section 31, in township 27 S., range 15 E., W. M. — containing 169.15 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon the said lands; that said lands are riparian thereto; that the said P. W. Jones, as such riparian owner, is entitled to the use of 110 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the *Page 361

irrigation of his said lands; but said use is subsequent and inferior to all of the rights acquired by appropriation, to the extent granted in this decree.

That the defendant Mary C. Brown is the owner in fee simple of the following described lands, to wit: The S.E. ¼ of section 31, township 27 S., range 15 E., W. M., containing 160 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said lands; that said land is riparian thereto; that the said Mary C. Brown, as such riparian owner, is entitled to the use of 50 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of her said lands; that said use is subsequent and inferior to all of the rights acquired by appropriation, to the extent granted by this decree.

That the defendant C. E. McKune is the owner in fee simple of the following described lands, to wit: The N.E. ¼ of section 31, township 27 S., range 14 E., W. M., containing 160 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said land; that said land is riparian thereto; that the said C. E. McCune, as such riparian owner, is entitled to the use of 50 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of her said lands; that said use is subsequent and inferior to all of the rights acquired by appropriation, to the extent granted in this decree.

That the defendant E. D. Lutz is the owner in fee simple of the following described lands, to wit: The N.E. ¼ of section 10, and the E. ½ of the N.E. ¼, and the W. ½ of the N.E. ¼, and the E. ½ of the N.W. ¼ of section 15, township 28 S., range 14 E., W. M., containing 400 acres of land, in Lake County, Or. That Silver Creek, in Lake County. Or., flows to and upon the said land; that said land is riparian thereto; that the said E. D. Lutz, as such riparian owner, is entitled to the use of 107 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said lands; that said use is subsequent and inferior to each of the rights acquired by appropriation, to the extent granted by this decree.

That the defendant George Durand is the owner in fee simple of the following described lands, to wit: The S.E. *Page 362

¼ of the S.W. ¼ of section 18; the N. ½ of the N.W. ¼, and the S.W. ¼ of the N.W. ¼, the S.W. ¼ and the S. ½ of the S.E. ¼ of section 19; the N.E. ¼, and the E. ½ of the N.W. ¼ of section 30, township 30 S., range 14 E., W. M., containing 640 acres of land, in Lake County, Or. That the said defendant Durand is the owner by prescription of the right to the use of 160 inches of the waters of said Silver Creek for the reasonably necessary irrigation of his said lands.

That the defendant C. C. Jackson is the owner in fee simple of the following described lands, to wit: The N.E. ¼ of section 12, township 28 S., range 14 E., W. M., containing 160 acres of land, in Lake County, Or. That the said defendant C. C. Jackson is the owner of a right to the use of the surplus waters from the Conley ditch flowing past the lands of the said plaintiff Marion Conley; that the same is not riparian to Silver Creek.

That the defendant the Occidental Land Improvement Co., a corporation, is the owner in fee simple of the following described lands, to wit: Tract No. 1: The S. ½ of the N. ½ and the S. ½ of section 16; the N. ½ and the N. ½ of the S. ½ and the S. ½ of the S.W. ¼ of section 21; the W. ½ of the N.W. ¼ of section 22; the S. ½ of the N.E. ¼ of the N.W. ¼ of the S.E. ¼, and the N.E. ¼ of the S.W. ¼ of section 20 — in township 28 S., range 14 E., W. M., containing 1,320 acres of land, in Lake County, Or. Tract No. 2: The N. ½ and the N. ½ of the S. ½ of section 2, township 28 S., of range 14 E., and the S. ½ of the S. ½ and the N.E. ¼ of the S.E. ¼ and the E. ½ of the N.E. ¼ of section 35; the S.E. ¼ of the S.E. ¼ of section 34; the S. ½ of the S.E. ¼ of section 26, township 27 S., range 14 E., W. M., containing 880 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon the said lands; that said lands are riparian thereto; that the Occidental Land Improvement Co., as such riparian owner, is entitled to the use of 355 inches of the waters of said Silver Creek, measured as aforesaid, as a reasonably necessary use for the irrigation of the tract of land hereinbefore designated as tract No. 1; that the Occidental Land Improvement Co., as such riparian owner, is entitled to the use of 235 inches of the waters of said stream, measured as aforesaid, as a reasonably necessary use for *Page 363

the irrigation of the tract of land hereinbefore designated as tract No. 2; but said use by said defendant, the Occidental Land Improvement Co., upon the above-named tracts of land, is subsequent and inferior to the appropriation, to the extent granted by this decree, to the defendant George H. Small.

That in the S.E. ¼ of the S.W. ¼ of section 15, township 27 S., range 14 E., W. M., in Lake County, Or., a branch of said Silver Creek, known as the `Bunyard Branch,' diverges and flows in a southeasterly direction. That said Bunyard Branch is an ancient and well-defined channel of the said Silver Creek; that there has been accustomed to flow through the said Bunyard Branch at that point of diversion one quarter of the waters of said Silver Creek.

That the defendant Walter C. Buick is the owner in fee simple of the following described lands, to wit: The S.W. ¼ of section 14, township 28 S., range 14 E., W. M., containing 160 acres of land, in Lake County, Or. That the defendant Corinna Buick is the owner in fee simple of the following described lands, to wit: The S.E. ¼ of section 14, township 28 S., range 14 E., W. M., containing 160 acres of land, in Lake County, Or. That the defendants Isa M. Corum, Jewell D. Corum and Lulu Corum La Brie are the joint owners and tenants in common of the following described lands, to wit: The W. ½, the N. ½ of the N.E. ¼ of section 13, the N. ½ of the N.W. ¼ of section 24, township 28 S., range 14 E., W. M., containing 480 acres of land, in Lake County, Or. That the defendant J. M. Small is the owner in fee simple of the following described lands, to wit: The S. ½ of the N.E. ¼, and the S.E. ¼ of section 13, and the N. ½ of the N.W. ¼, and the S.E. ¼ of the N.E. ¼ of section 24, in township 28 S., range 14 E., W. M., the S.W. ¼ of section 18, the N.W. ¼ of section 19, in township 28 S., range 15 E., W. M., containing in all 680 acres of land, in Lake County, Or. That in the year 1885, the defendants Walter C. Buick, Corinna Buick, Lulu Corum La Brie, Isa M. Corum, Jewell D. Corum and J. M. Small, and their grantors, appropriated from the United States and the State of Oregon, and diverted and carried away from said Silver Creek at a point near the S.W. corner of the S.E. ¼ of the N.W. ¼ of section 22, township 28 S., range 14 E., W. M., in Lake *Page 364

County, Or., by means of dams, head gates and ditches, 600 inches of the waters of said Silver Creek, and ever since said date the said defendants and their grantors have used all of the said water for the necessary irrigation of their tracts of land as hereinbefore set out. That the said defendants Walter C. Buick and Corinna Buick, as such appropriators, are entitled to the joint use of 200 inches of the waters of said Silver Creek, measured as aforesaid, to be deducted from the flow of the said Bunyard Branch of said Silver Creek, as a reasonably necessary use of said waters for the irrigation of their said lands; said right to be subsequent and inferior to the rights of plaintiffs Marion Conley and Annie C. Hough, and the defendants John C. Porter, George H. Small, Lucinda Egli, Occidental Land Improvement Co. and S. A. D. Porter, to the extent granted by this decree. That the defendants Lulu Corum La Brie, Isa M. Corum and Jewell D. Corum, as such appropriators, are entitled to the joint use of 100 inches of the waters of said Silver Creek, measured as aforesaid, and deducted from the flow of the Bunyard Branch aforesaid, as the reasonably necessary use of said waters for the irrigation of their said lands; said right to be subsequent and inferior to the rights of the plaintiffs Marion Conley and Annie C. Hough and the defendants John C. Porter, George H. Small, Lucinda Egli, Occidental Land Improvement Co. and S. A. D. Porter, to the extent granted by this decree. That the defendant J. M. Small, as such appropriator, is entitled to the use of 200 inches of the waters of said Silver Creek, measured as aforesaid, to be deducted from the flow of the Bunyard Branch of said Silver Creek, as a reasonably necessary use of said waters for the irrigation of his said lands; said right to be subsequent and inferior to the rights of the plaintiffs Marion Conley and Annie C. Hough and the defendants John C. Porter, George H. Small, Lucinda Egli, Occidental Land Improvement Co. and S. A. D. Porter, to the extent granted by this decree.

That the defendants B. F. Lane and Jennie Lane, his wife, are the owners in fee simple of the following described lands, to wit: The N.E. ¼ of section 18, township 28 S., range 15 E., W. M., containing 160 acres of land, in Lake County, Or.; also the E. ½ and lots 1 and 2, and the N.W. ¼ of section 18, in township 28 S., range 15 *Page 365

E., W. M., containing 159.96 acres of land, in Lake County, Or. That Silver Creek, in Lake County, Or., flows to and upon said land from the said Bunyard Branch of said Silver Creek; that said land is riparian thereto; that the said B. F. Lane and Jennie Lane, his wife, as such riparian owners. are entitled to the use of 90 inches of the waters of said Bunyard Branch of said Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of their said lands; but said use is subsequent and inferior to all of the rights acquired by appropriation hereinbefore set out, to the extent granted by this decree.

That the defendant F. M. Chrisman is the owner in fee simple of the following described lands, to wit: The S.E. ¼ of section 12, township 28 S., range 14 E., W. M., containing 160 acres of land, in Lake County. Or. That the Bunyard Branch of Silver Creek flows to and upon said land; that said land is riparian thereto; that the said F. M. Chrisman, as such riparian owner, is entitled to the use of 40 inches of the waters of said Bunyard Branch of Silver Creek, measured as aforesaid, as a reasonably necessary use of the said water for the irrigation of his said land; that said use is subsequent and inferior to all of the rights acquired by appropriation, to the extent granted in this decree.

That the defendants L. Huesmand, Morris Ranner, John Partin, Jr., L. P. Klippel, Emil Egli, Henry Egli, Martie Ward, Angeline West, Mary Small, James M. Martin. J. M. Sherer, Maude Small, J. Hall, C. D. Buick, R. E. Smith, J. A. Smith, J. C. Harrow and F. F. McCarty have been duly served with summons and complaint herein, as more particularly appears from the records and files in this court, and a default has long since been ordered entered against them for the want of appearance or answer. It is adjudged and decreed that said defaulting defendants have no right, title or interest in the waters of Silver Creek, or any of its tributaries or branches, or the use of such water. It is further adjudged and decreed that P. G. Chrisman has no right, title or interest in the waters of Silver Creek, or the use thereof. It is decreed that none of the parties to this suit are entitled to recover either costs or disbursements herein. That there is to be allowed to flow from Silver Creek into its Bunyard Branch not to exceed one fourth *Page 366

of the flow of Silver Creek at the head of Bunyard Branch, less 600 inches of water, measured under six-inch pressure, being the diversion in and through the Buick ditch."

The defendants L. Huesmand, Morris Ranner, John Partin, Jr., L. P. Klippel, Emil Egli, Henry Egli, Martie Ward, Angeline West, J. A. Smith, Mary Small, James M. Martin, J. M. Sherer, Maude Small, J. Hall, C. D. Buick, R. E. Smith, J. C. Harrow and F. F. McCarty each defaulted, and do not appeal.

Those appearing but not appealing are: George Durand, L. Huesmand, Morris Ranner, Lucinda Egli, John Partin, Jr., George H. Small, L. P. Klippel, Emil Egli, Lulu Corum La Brie, Isa M. Corum, Jewell D. Corum, Walter C. Buick, Corinna Buick, E. K. Henderson and J. M. Small.

The appellants are: S. A. D. Porter, C. D. Porter, administrator, Daisy Porter, widow, and W. F. Porter, E. A. Porter and Carl D. Porter, minor heirs of S. A. D. Porter by Daisy Porter, guardian; P. G. Chrisman, John C. Porter and James C. Porter, his guardian; F. M. Chrisman, B. F. Lane, Jennie Lane, C. C. Jackson, Occidental Land Improvement Co., a corporation, and Chewaucan Land Cattle Co., its grantee; P. W. Jones, C. E. McKune, Mary C. Brown and E. D. Lutz.

AFFIRMED IN PART: CONTINUED.

For plaintiffs and respondents there was a brief and oral argument by Mr. J. C. Rutenic .

For appellants there was a brief over the names of Mr. W. J. Moore and Mr. E. B. Watson , with an oral argument by Mr. Watson .

For defendants and respondents Walter C. Buick, Lulu Corum La Brie, Isa M. Corum, Jewell D. Corum and J. M. Small there was a brief and oral argument by Mr. Lionel R. Webster .

For defendant and respondent Geo. H. Small, there was a brief over the names of Coovert Stapleton . *Page 367

There was a brief and oral argument by Mr. Roscoe R. Johnson, amicus curiae .

Opinion by MR. COMMISSIONER KING.

We have given above a synopsis of the pleadings filed, including the orders and decree of the circuit court, extracted from the 300 pages of printed abstract of record, with a view to the proper understanding of the issues upon which the main contentions of the numerous parties to the suit are based and argued on this appeal. The first point to which our attention is directed is in respect to the order of the court directing that all parties having, or claiming, an interest in the subject-matter of the controversy, be brought into the suit, which order, it is maintained, is not authorized by law, by reason of which it is argued the rights of only the parties to the suit as first filed can be adjudicated, requiring a dismissal thereof as to all others. The statute under which the order was made is as follows:

"The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in": B. C. Comp. §§ 41, 394.

The facts presented by the testimony taken in the suit as first instituted, and upon which the order was made, developed a serious controversy as to who was the real party causing the alleged injury. It appears that Silver Creek is a perennial stream with well-defined banks and channels, carrying from 11 ½ second feet during the low-water season to 100 second feet when at its highest water mark, and that the lands of all parties to the suit are dependent upon this stream for irrigation. Hough's farm is a short distance below that of Porter on the creek, and it is disclosed by the first testimony taken, as well as that taken later, that below Porter's point of *Page 368

diversion George H. Small and others had for a long time diverted a large quantity of water from this stream. Hough claimed 100 inches as the quantity necessary for the proper irrigation of her farm, to which quantity she asserted her right was superior to that of Porter, who, she maintained, was wrongfully interfering with her right to the use thereof. In response thereto, Porter claimed a right as prior appropriator to 100 inches of the waters of Silver Creek and its branches for the irrigation of his lands above the Hough farm, and insisted that, whether his rights were superior to Hough's rights or not, he at all times permitted not less than 100 inches of water to flow below his point of diversion, which would have reached Hough's farm but for the wrongful interference of Geo. H. Small, who was not a party to the suit. Others, not parties, but situated upon and in the immediate vicinity of the stream, also appear to have claimed water rights therein, and to have been diverting water in various quantities for irrigation purposes, and that during the months of June, July, August, September and October of each year there was not a sufficient quantity of water to supply the demands of all; the amount during the latter part of the irrigation season consisting of but 11 ½ second feet.

It is manifest that plaintiff, in the first instance, could have made as defendants all persons along the stream and on its tributaries and branches, against whom she might have claimed adversely: B. C. Comp. § 394. Although some may not have been necessary, all would have been proper parties to the suit: Williams v. Altnow , 51 Or. 275

( 95 P. 200 , 208 ). But as to the interruptions by Small and those using water through the Small ditches and in connection therewith, it is apparent from the character of the testimony adduced, that in order to properly determine the rights of Hough and Porter, they were necessary and were properly made defendants. for if true, as claimed by Porter, that he let *Page 369

sufficient water pass his premises to supply Hough's needs and demands, the court could not have determined who was entitled to the use thereof, as between Small and Hough, or between Small and Porter or Porter and Hough, as the case might have been, unless they were parties to the suit. To illustrate: Assume the court had determined the respective rights of Hough and Porter in the first suit under the first amended complaint, and had found there were 460 inches in the stream during the low-water season; that Hough was entitled to the first 100 inches, and, as between them, Porter was awarded the second 100 inches, and had entered a decree to that effect; and that after the entry thereof Porter had diverted water for irrigation purposes, by reason of which he was cited to appear and show cause why he should not be held for contempt of court, but at the hearing should have proved that he used 100 inches only, leaving 360 inches to pass his head gate. Would he then have been in contempt because the water passing his point of diversion did not reach plaintiff? In other words, could he be held for the interference by Small, or others not parties to the suit? This illustration serves to demonstrate the ineffectiveness of a decree entered under such circumstances. Numerous instances occur where the rights between two persons can be, and have been, determined without bringing in others; for example, assume that A. and B. are at the head of a stream, and B., who is below A., has the first right to 100 inches of water. A suit to enjoin A. from a wrongful interference could easily be maintained, where there was no one diverting water from the stream between their respective points of diversion, for a decree in that case favorable to B., it can readily be seen, would be effective, as it would be such that its violation could be punished. Such a decree, it is true, would not bind others not parties to the proceeding, but it would be efficient as between the parties to it, and constitute an *Page 370

adjudication of their respective rights, of which either could avail himself in the event both should subsequently be joined with others in litigation over the same stream. Many of the suits where water rights have been adjudicated have been of this class, and the decrees have accordingly been effectual, while a large number, no doubt, have passed through the courts and to final decree as between a few on the stream, when, to have afforded a complete remedy, and to have avoided a multiplicity of suits, others should have been made parties, as was done in the case under consideration; but the failure to do so in such cases has been due to the point not having been raised, nor the court's attention called to the status of litigants in this respect. It is manifest that in the suit under consideration the rights of any of the three parties named could not have been determined with respect to each other without all being in court, and the same could be said of others along the stream.

We are of the opinion therefore that much discretion must be allowed the trial court in such cases, and that it comes within the reason and spirit of the statute to hold that all who may have an interest, directly or indirectly, in the subject-matter of the suit, may, by order of the court, be made parties thereto, especially where, as in the case before us, the determination of the rights of the litigants before the court could not otherwise have been had with reasonable accuracy, nor the decree, when entered, effectively enforced. The discretion of the court below in this respect was exercised by requiring all persons owning lands adjoining or claiming an interest in the waters of Silver Creek, its tributaries or branches, to be brought in and made parties, either plaintiff or defendant, as their interests appeared, with directions to interplead as to each other, and we think the evidence adduced at the trial confirms the wisdom of the course pursued. It is consonant with public policy, and public interests require, that when in the determination of *Page 371

conflicting claims to the right to the use of public streams, for irrigation, manufacturing or other useful purposes, it appears that many suits must eventually be brought to determine the various rights of persons whose property is to be affected by such use, it should be within the sound discretion of the trial court to require all, or any of the persons interested, to be made parties, as was done here, in order that the rights of each may be adjudicated and finally determined in one proceeding. This course should be permitted, and is obviously contemplated by the statute, not only with the view to economy in litigation, but that the respective interests of all affected may be justly, peaceably and permanently ascertained and settled during the lifetime of those cognizant of the facts upon which the adjudications must be had. It is obvious that it is not only impracticable to determine such rights in many instances without adopting such course, but that if left to separate suits to be brought from year to year as disputes may arise, not only will much valuable evidence pass beyond the reach of all, but such course, if pursued, must necessarily result in years of litigation and turmoil, and, in many instances, in a complete denial of justice. We are of the opinion therefore that no error was committed by the court in requiring the appearance of all the defendants.

The next point to which our attention is directed is that there is a misjoinder of parties plaintiff and of parties defendant. Some of the defendants having demurred on this ground, and otherwise raised the question, a determination thereof becomes necessary. These points, however, are necessarily disposed of adversely to appellants' contention under the first question considered. Since this court holds that the persons named as plaintiffs and defendants were necessary to a proper determination of the respective rights of Hough and Porter, they were, accordingly, properly made parties to the suit, and as to who should have been joined as plaintiffs, *Page 372

and who should have been made defendants, accordingly depends upon the facts alleged or proved. Since it appears that the diversion or use of the water of Silver Creek, or of its branches or tributaries, by any of the defendants, affects each of the plaintiffs' alleged rights thereto, then all are interested in the relief demanded, by reason of which they were entitled to join as plaintiffs to secure the required Protection: B. C. Comp. § 394; Stingel v. Nevel , 9 Or. 62 , 65 ; Williams v. Altnow , 51 Or. 275 ( 95 P. 200 -208). This also disposes of the question in reference to the alleged misjoinder of the defendants, for the same authorities and reasoning are applicable to their relative positions as to the plaintiffs.

Another and more serious point urged is that the complaint, as amended, after the order bringing in the additional parties, does not state sufficient facts to constitute a cause of suit against any of the defendants. except S. A. D. Porter, on which grounds the defendant P. G. Chrisman and others demurred. It is, in effect, conceded that the complaint is sufficient as to Porter, since it alleges sufficient interference by him in the use of the stream to constitute a substantial injury. After averring the facts constituting the injury by Porter, and upon which an injunction against him is sought, the complaint avers: "That all the defendants have, or claim to have, some rights or interest in the waters of Silver Creek, but that the exact nature or extent of said rights or claims of the defendants are to plaintiffs unknown, and the interests, if any, of defendants and each of them are inferior to the rights of plaintiffs in the waters of said stream." It is to this allegation that the demurrers of various defendants appear to be directed. In the arid states, where the sufficiency of this manner of pleading has been questioned, it has been sustained: Cache L. P. ft. Co. v. Water S. S. Co. 27 Colo. 532 ( 62 P. 420 ); Harris v. Harrison , 93 Cal. 676 ( 29 P. 325 ); Wiggins v. Muscupiabe L. W. Co. 113 Cal. 182

( 45 P. 160 : *Page 373

32 L.R.A. 667 : 54 Am. St. Rep. 337 ); Farm Inv. Co. v. Carpenter , 9 Wyo. 110

( 61 P. 258 : 87 Am. St. Rep. 918 : 50 L.R.A. 747 ). Averments to that effect would seem to come within the language and spirit of B. C. Comp. § 394, which, inter alia , provides: "Any person may be made a defendant who has or claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein."

In Umatilla Irri. Co. v. Umatilla Imp. Co. 22 Or. 386 ( 30 P. 30 ), the rights attempted to be maintained, and for the determination of which a decree was sought, were asserted under a special statute governing corporations, wherein a specific manner was provided for acquiring title to water by appropriation; and, when the court there observed that the statute required a strict construction, it evidently had reference to that act. In the consideration of that case, attention is called to the fact that the plaintiff had no perfected a claim to the water rights there asserted, in reference to which the court at page 389 of 22 Or. (page 37 of 30 P.), say: "The plaintiff has failed to bring itself within any principle of equity jurisdiction which would enable a court of equity to consider or pass upon the supposed rights alleged in its complaint." And at page 387 of 22 Or. (page 37 of 30 P.): That the clear logic of the position seemed to be to ask the court "to certify that the plaintiff owns the water which it claims, for the purpose of enabling it to make a sale of its bonds." The rule there announced can have no application to cases where the defendants, or some of them, may be necessary to a proper determination of the rights between any of the plaintiffs, who may allege facts disclosing an established right, and defendants in a suit based upon acts, real or threatened, sufficient to constitute reasonable grounds for the apprehension of some substantial injury to vested property rights. Section 394, B. C. Comp., would appear *Page 374

expressly to give the right, under such circumstances, to make any person a party who has, or claims to have, an interest in the controversy adverse to plaintiffs. But, independent of that section of the statute, the right existed at common law, as a part of the general equity jurisdiction. As observed in Ballou v. Inhabitants of Hopkinton , 4 Gray (Mass.) 324 , 328: "In regulating the rights of mill owners and all others in the use of a stream, wherein numbers of persons are interested, equity is able, by one decree, to regulate their respective rights, to fix the time and manner in which water may be drawn, and within what limits it shall or shall not be drawn by all parties, respectively; and thus it is peculiarly adapted to the relief sought against such alleged nuisance and disturbance, and affords a more complete and adequate remedy than can be afforded by one or many suits at law: Bemis v. Upham , 13 Pick. (Mass.) 169; Bardwell v. Ames , 22 Pick. (Mass.) 333." Again, since Sections 41 and 394, B. C. Comp., when construed together, give to the court discretionary power to require all persons interested in the subject-matter of the suit to be made parties, these provisions of the statute, by implication, include all such powers essential to the proper carrying of the order into effect.

In this connection it is manifest that, as to those persons not actually interfering with plaintiffs' alleged rights along the stream, no averment, except of similar import to that set out in the complaint, could well have been made. It is obvious therefore that the allegation that all of the defendants have, or claim to have, an interest in the distribution of the waters of Silver Creek, the nature of which is unknown to complainants, etc., should be sufficient for the purpose of requiring all to interplead and assert their respective rights, whatever they may be, in the subject-matter of the suit; and this was the course of procedure adopted in respect to all, except as to S. A. D. Porter. While some did not see *Page 375

proper to affirmatively assert their rights, the neglect on their part to do so cannot affect the interest of the other parties to the suit. and, at most, could only result in a decree being entered precluding those in default from hereafter asserting any rights against the parties whose interests under the issues as made may here be adjudicated. We are therefore impelled to hold that, whether brought in question by demurrer, or otherwise, the averments of the complaint and procedure adopted are sufficient.

The next question for determination relates to the right of defendants to have their interests and claims adjudicated between themselves. It appears that practically all of the defendants who are not in default have filed pleadings in response to the answers of their codefendants, specifically denying the affirmative averments or counterclaims in the answers of the several defendants. In this respect the case is unlike that of Nevada Ditch Co. v. Bennett , 30 Or. 59 , 83 ( 45 P. 472 : 60 Am. St. Rep. 777 ), in which it is held that while each of the defendants therein denied the averments of the complaint and affirmatively set up their rights, and in some instances had alleged their claims to be prior and superior to the rights of all the other defendants, and of those of plaintiff, the procedure there adopted was insufficient to permit the court to adjudicate the quantity and priority of any of the appropriations, except as between the plaintiff therein and the several defendants. Since our statute does not indicate the course to be pursued, the proper procedure in such cases would seem to be that the general methods of chancery, as modified by the spirit of the Code, must be adopted: Pomeroy, Rem. (3 ed.), § 808; Bliss, Co. Pl. (3 ed.), § 390; Eve v. Louis , 91 Ind. 457 , 470 ; Diamond F. C. Co. v. Boyd , 30 Ind. App. 485 , 488 ( 66 N.E. 479 ); Tucker v. St. Louis Life Ins. Co. 63 Mo. 588 , 594 . *Page 376

In the chancery courts, when a defendant sought relief against a codefendant, as to matters not apparent upon the face of the original bill, he filed his cross-bill, alleging therein the matters upon which he relied for relief, making defendants thereto of such codefendants and others as was proper, and process was necessary to bring them in. B. C. Comp. § 391, abolishes cross-bills, but provides that in actions at law, where a defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may, upon filing his answer therein, also as plaintiff file a complaint in equity, in the nature of a cross-bill, upon which the issues may thereafter be tried out as in a suit in equity. This provision implies that, when a suit in equity is brought, the same right would follow, except that the necessity of filing a separate and distinct pleading is obviated, leaving the defendant affirmatively to set up his defense, commonly termed a counterclaim, alleging the facts necessary to relief against all or any of the parties to the suit.

This method is applicable, however, only where the cause of suit set up against the codefendants is one arising out of, or having reference to, the subject-matter of the original suit; and such appears to be the status of the defendants in the suit under consideration, as each appears to claim an interest in the main stream involved, and to claim and assert some right in respect thereto as against the other. "No court," says Mr. Bliss (Section 390), "would deny one's right, or invent an original mode of proceeding for protecting it, because of an omission in the Code, so long as the common-law or equity practice furnished a remedy." Here the Code abolishes the form, but leaves the substance, and this court appears to recognize this remedy, as available under it: Nevada Ditch Co. v. Bennett , 30 Or. 59 , 83 ( 45 P. 472 : 60 Am. St. Rep. 777 ). *Page 377

It is necessary, however, in such cases, that sufficient notice be given the codefendant against whom the relief is sought. In Tucker v. St. Louis Life Ins. Co. 63 Mo. 588 , 595 , it is remarked that in that state "it has not been the practice to issue process in such cases; but it has always been customary to afford ample time to a codefendant to answer as to the relief sought — a time which is generally fixed by the court's order to that effect. And if, in the absence of any statutory rule, we are to be governed by parity of reasoning deduced from cases where relief is sought by petition, at least the same time and opportunity to plead should be granted where relief is sought by an answer in the nature of a crossbill, as when prayed for by petition." But from Pomeroy, Rem. § 808, cited with approval in Nevada Ditch Co. v. Bennett , at page 83 of 30 Or. (page 472 of 45 Pac: 60 Am. St. Rep. 777 ), it would appear that service of a notice of some substantial nature would be essential to jurisdiction in such cases. As the notice required in such cases is not pointed out by the Code, it would seem that since there exists the right to affirmatively set up in the answer the matter constituting the cross-complaint, o counterclaim, in place of by an original bill, as in the chancery practice, the defendant in so doing, to all intents and purposes, places himself in the position of a plaintiff in respect to his codefendants, with the result that the issue and service of a summons accompanied by a copy of the answer in a similar manner to that provided for a plaintiff in an original proceeding would be sufficient. In the case at bar, however, the order of the court, a copy of which was directed to, and served upon each, required that all should appear within a time there specified, and plead and interplead with respect to each other as their several interests might appear, which was in effect the same, and served the same purpose, as a summons, and was sufficient to require the appearance and interpleas demanded. In that respect the order *Page 378

having directed the interpleas between each, only such proceedings were required after service thereof, in reference to serving copies of answers, etc., as were required by the rules of the district in which the suit was brought.

Without, at this time, determining whether the affirmative defenses constituting the counterclaims are sufficiently pleaded, or state sufficient facts, etc., we hold that the method of procedure adopted by the court and parties responding thereto was ample, and, if the pleadings state sufficient facts for the purpose, is sufficient to give the court the jurisdiction necessary to determine the rights of each and all who may appear to have been duly and regularly served with the court's order in reference thereto.

Thus far we have disposed of the principal points discussed in the briefs and oral arguments of counsel for the respective parties, the determination of which, it was argued with much force, must result in a dismissal of the suit so far as affects all, except the parties to the original suit. The conclusion reached, however, leaves all in court, making necessary an adjudication of their respective rights so far as practicable under the issues and evidence, which brings us to the merits of the controversy.

As will appear from the issues stated, some of the parties to the proceeding claim as riparian proprietors, while others invoke the doctrine of prior appropriation. Throughout the discussion, oral and otherwise, it has been and is taken for granted that all the lands on the streams involved are riparian thereto for irrigation purposes. If this assumption, as a matter of law, is correct, then, so far as such riparian owners are concerned, the water to which each thereof may be entitled must be distributed on that basis; their rights thereto being subject only to the rights of those who may have appropriated the water prior to the time of the inception of such riparian interests. What, then, must be the basis of the *Page 379

distribution between the riparian owners, if any? During the low-water season, and when most needed, the water flowing in Silver Creek is approximately 460 inches, with about 4,000 acres of riparian lands demanding water rights as such. These lands cover a large territory, and to divide the water proportionately between them — to say nothing of about 7,000 acres of lands of parties hereto claiming as prior appropriators — would result in such scarcity of water that it would seem that none could be very materially benefited under such circumstances. A large portion of this acreage has never been irrigated, yet the owners thereof demand water for this acreage on an equality with lands long since brought into cultivation by irrigation. If the riparian doctrine must prevail, their rights, under the law, appear entitled to the same consideration as those who have diligently applied the water to a beneficial use. It was, in effect, announced, in Jones v. Conn , 39 Or. 30

( 64 P. 855 , 65 P. 1068 : 54 L.R.A. 630 : 87 Am. St. Rep. 634 ), and in Williams v. Altnow (decided April 28, 1908), 51 Or. 275 ( 95 P. 200 ), that there is no such thing as prior riparian ownership, so far as distribution of water for irrigation purposes between riparian owners is concerned In Williams v. Altnow , Mr. Chief Justice BEAN says:

"A riparian proprietor has no title to the water flowing over his land, but only the right to use it while it is passing his place, and this right is subordinate to a corresponding right in all the other proprietors. One proprietor cannot unreasonably detain or give the water another direction or use it in any way to the injury of the others. It necessarily follows, therefore, that the nature and extent of the right of a riparian proprietor to the water of a stream, for irrigation, cannot be measured by any definite or fixed rule, nor can the amount of water to which he is entitled to use for that purpose ordinarily be definitely ascertained or determined, although this may, perhaps, be done in exceptional cases. It is necessarily a varying quantity, depending upon the *Page 380

use by other proprietors and whether it is an injury to them."

If, then, the distribution of the water, or of any material portion of it, in the case at bar, is to be made under the so-called modified riparian doctrine, we are confronted with a serious problem as to how it shall, in this case, be accomplished. While the cause has been tried largely on the theory that riparian rights have attached to the lands, the evidence seems to be inadequate for the purpose of making an equitable distribution under that rule. Before the distribution can be made, we must first know the quantity of water in the stream from time to time during the irrigation season, the acreage of each farm in crops, character thereof, the amount required for the proper irrigation of each crop and kind of crop, time for irrigation of each, etc., and all of the lands should be properly surveyed and platted, showing its status in this and various other respects in detail. But the record, although voluminous, discloses but little evidence of a definite nature upon these and other points required. When there is a scarcity of water, and the acreage is large, much and more explicit evidence is required in order to adjust the rights between riparian proprietors than under ordinary conditions. It has been held in California that the distribution among riparian owners, in some instances, may be made under the rotation method, or by periods of time, rather than by a division of its quantity: Wiggins v. M. L. W. Co. 113 Cal. 182 , 190 ( 45 P. 160 : 32 L.R.A. 667 : 54 Am. St. Rep. 337 ). In fact, as stated in Jones v. Conn , 39 Or. 30 ( 64 P. 855 , 65 P. 1068 : 54 L.R.A. 630 : 87 Am. St. Rep. 634 ), each case must depend upon the particular facts in it, and no definite rule can be adopted for that purpose. It is clear, therefore, that greater particularity is required in the proof in such cases than where the question of riparian ownership does not arise. But this case appears to have been tried upon the theory that the *Page 381

converse is true, and if the riparian doctrine is applicable to the lands owned by the several parties, or by a great number of them, it may become necessary to remand the cause for further light on the points suggested.

The record, however, discloses that none of the lands were settled upon by those subsequently acquiring title thereto, until beginning with about the year 1878, which is subsequent to the passage of the Desert Land Act, and as indicated in Williams v. Altnow , 51 Or. 275 ( 95 P. 200 ), it is a serious question whether this act does not abolish the common-law rule relative to the doctrine of riparian rights, so far as its interpretation has been applied to irrigation of lands to which title has been acquired since that act became a law: Act March 3, 1877, c. 107, § 1, 19 Stat. 377 (U.S. Comp. St. 1901, p. 1548), 6 Fed. St. Ann. 393; United States v. Rio Grande Irri. Co. 174 U.S. 690 ( 19 Sup.Ct. 770 : 43 L.Ed. 1136 ); Farm Inc. Co. v. Carpenter , 9 Wyo. 110 . 138 ( 61 P. 258 , 265 : 50 L.R.A. 747 : 87 Am. St. Rep. 918 , 935). While this question was neither raised in the court below nor here, it so materially affects rights of the parties to the suit, some of whom are not represented by counsel, that it cannot be passed unnoticed. Nor do we feel disposed to pass upon a question of such vast importance, not only to the litigants here, but, perhaps, to numerous others throughout the State, without first giving those concerned an opportunity to be heard.

It is therefore deemed proper to continue the cause for further argument. by such as may wish to be heard, upon the points indicated, leaving open for discussion any other points involved and not here determined, among which may be the sufficiency of the pleadings to determine the rights of the several defendants, as well as the respective priorities between the parties claiming as prior appropriators, together with the right to a full discussion of any other points that may arise, with the privilege of *Page 382

filing such other and additional briefs bearing on the points to be considered as may be desired.

AFFIRMED IN PART: CONTINUED FOR FURTHER ARGUMENT.

SUPPLEMENTAL OPINION.

Opinion by MR. COMMISSIONER KING.

The principal contention of appellants as first urged was that the court acted without jurisdiction in directing that all persons interested in the lands bordering on Silver Creek, its tributaries and channels, be made parties to the suit, and that such action on the part of the court constituted reversible error. These questions of practice with matters incidental thereto, were determined adversely to counsel's contention ( 51 Or. 367 : 95 P. 732 ), and the cause was set down for further argument on the main points involved, principal among which is that of riparian rights, as affected by Act. Cong. March 3, 1877, c. 107, 19 Stat. 377 (U.S. Comp. St. 1901, p. 1548), known as the "Desert Land Act": 95 P. 732 . This question and the points formerly determined were fully discussed at the re-argument. After a reconsideration of the questions of practice presented we find no reason to depart from the conclusions announced in our former opinion.

We come, then, to a consideration of the Desert Land Act, as to its effect upon the parties hereto owning lands upon the streams involved, the rights of each of whom have attached since the passage of the act. This confronts us with the legal problem as to whether any are riparian owners, and, if so, to what extent and what bearing their claims as such have upon the water rights in question. *Page 383

It has become a matter of history that prior to any laws upon the subject the use of water was exercised under a custom permitting any person to go upon a stream, or other source of water supply upon the public domain, and divert water therefrom wherever and whenever needed, provided the use thereof did not interfere with the prior rights of others. in other words, priority in the diversion and use determined the rights of all conflicting claimants. This procedure was encouraged and acquiesced in by the government for many years throughout the Pacific Coast states, until in recognition thereof Act Cong. July 26, 1866, c. 262, § 9, 14 Stat. 253 , 7 Fed. St. Ann. 1090 (U.S. Comp. St. 1901, p. 1437), was adopted, which provided: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed * *." This act constituted a recognition of pre-existing rights rather than a creation of any new one, and accordingly recognized and assented to appropriation of water in contravention to the common-law rule as to continuous flow: Broder v. Water Co. 101 U.S. 274

( 25 L.Ed. 790 ); United States v. Rio Grande Irr. Co. 174 U.S. 690

( 19 Sup.Ct. 770 : 43 L.Ed. 1136 ); Gutierres v. Albuquerque Land Co. 188 U.S. 545

( 23 Sup.Ct. 338 : 47 L.Ed. 588 ); Davis v. Chamberlain , 51 Or. 304

( 98 P. 154 ).

Supplemental to the above act, provision was made by congress July 9, 1870, for incorporating a reservation in favor of such rights in all patents when issued, as follows: "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued *Page 384

water rights or rights to ditches and reservoirs used in connection with such water rights. * *": Rev. St. § 2340 (U.S. Comp. St. 1901, p. 1437). This was followed on March 3, 1877, by what is known as the "Desert Land Act," parts of which, in so far as material to this discussion, are:

"That it shall be lawful for any citizen of the United States, or any person of requisite age `who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of twenty-five cents per acre, to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter: Provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands, and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights 19 Stat. U.S. 377, 6 Fed. St. Ann. 392 (U.S. Comp. St. 1901, p. 1548).

The title of the foregoing act reads: "An act to provide for the sale of desert lands in certain states and territories." Being an act of congress, it is well known that it is not required that the title of the act embrace all its provisions; and, while a different rule prevails in some of the states, it is probably an exception rather than the rule that acts of congress are limited to matters contained in their title. This being the rule which prevailed in congress, we have only to look to the body of the act to ascertain its intention. *Page 385

After providing for the reclamation of arid lands and for the procuring of title thereunder, it will be observed that, in this act, as essential to the reclamation of lands, the water right, when located by the person taking the land, shall depend upon bona fide prior appropriation. The reason for this is apparent. The object and purpose of the act was by this method to reclaim, develop, and make productive arid lands or those of a desert character, which as a rule were nonriparian. For many years it was an open question whether lands through which streams flowed in their natural channels were subject to reclamation under this act: Sims v. Phalen , 11 Land Dec. Dep. Int. 206. But it was finally determined that such lands could be reclaimed where clearly shown to be of a desert character: Houck v. Bettelyoun , 7 Land Dec. Dep. Int. 425; Nilson v. Anderson , 23 Land Dec. Dep. Int. 139. Considering this feature with the then long-existing conditions in reference to the public lands throughout the West, the reasons for providing that the water right should be acquired under the doctrine of prior appropriation are obvious.

This first act (1866) refers to priority of possession and local customs, rules, regulations, etc., to which rules of construction were soon applied; the outcome depending largely upon whether the decisions were by courts in localities of a strictly arid nature or in the humid states. If in a strictly arid section, the doctrine of prior appropriation prevailed; while, if humid, a middle ground, or what is called the "modified doctrine of riparian rights," appears to have been the one adhered to and deemed the most conducive to the public welfare. Near the time of the passage of this act conflicts had arisen from the application of the law, as applied to riparian rights, in the arid and semi-arid West. In California the effect thereof on riparian rights was involved in much doubt and not fully determined, while in Nevada *Page 386

the noted case of Vansickle v. Haines , 7 Nev. 249 , had been decided, adhering to the common-law rule on the subject. This latter case, however, was subsequently overruled, since which time the doctrine of prior appropriation has there prevailed: Jones v. Adams , 19 Nev. 78

( 6 P. 442 : 3 Am. St. Rep. 788 ); Reno S. Works v. Stevenson , 20 Nev. 269

( 21 P. 317 : 4 L.R.A. 60 : 19 Am. St. Rep. 364 ); Walsh v. Wallace , 26 Nev. 299 ( 67 P. 914 : 99 Am. St. Rep. 692 ). The act of 1866 had left somewhat in doubt, not only the question of its effect upon riparian rights, but an uncertainty whether it thereby intended to establish a permanent rule upon the subject; and the act of 1870, requiring reservations in all patents issued, by inserting a statement therein to the effect that the patents were executed subject to vested and accrued water rights, etc., was evidently intended as a precautionary measure to remove doubts then extant as to the legal effect of any patents subsequently issued, so far as applicable to any rights acquired before the date thereof.

In order, therefore, to remove such doubts and to establish a uniform rule throughout the states mentioned in the act, whereby all appropriations made from streams flowing through public lands over which congress had power to legislate, after the provisions specifying the manner in which lands taken under the act could be reclaimed, there was added the clause: "And all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands, and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights": 19 Stat. 377 (U.S. Comp. St. 1901, p. 1549). This reservation of water rights for the benefit of the public was clearly not essential to any of the other provisions of the act. The previous statement contained sufficient to *Page 387

define and protect the rights of those selecting lands under the desert land act; but the added proviso, or something of similar import, was essential to the establishment of a clear and uniform rule upon the subject as regards all appropriations thereafter to be made from streams or ether bodies of water upon the public lands and to which such might be riparian. The words "shall remain and be held free for the appropriation and use of the public for irrigation," etc., are clearly words of reservation and dedication, and obviously so intended. It is insisted, however, that the language quoted is insufficient for either a giant, trust, or dedication; that a grant presupposes a grantee capable of receiving it; that it is not a trust, because all three essentials necessary to constitute a trust — i.e., trustee, trust res , and cestui que trust — are wanting; that it cannot be held to be a dedication, in that the right there alluded to is not an easement, but is usufructuary only, partaking of the nature of real estate, an incorporeal hereditament, analogous to a "profit" in land, in that it depletes the riparian right. It is further observed that a dedication is not a grant and cannot arise by grant, since it exists in favor of the entire public, in respect to which it was asserted, as above stated, that it cannot become a grantee.

A dedication is defined as being in the nature of a gift, inuring to the benefit of the public as a grant, but differing from a grant in that no grantee in esse is necessary to its validity: 9 Am. Eng. Ency. Law, 21; 13 Cyc. 439. It consists of devotion or giving of property for some proper object and in such a manner as to conclude the owner: State ex rel. Sims v. Otoe County , 6 Neb. 129 , 133 ; Patrick v. Y. M. C. A. 120 Mich. 185 , 193 ( 79 N.W. 208 ).

A "reservation," as here used, is something taken from the whole thing covered by the general terms making the grant, and cuts down and lessens it (or act, under which title to the res from which the reservation may be *Page 388

made) from what it would be except for such reservation: Words

Phrases, p. 6140; Weynand v. Lutz (Tex.Civ.App.), 29 S.W. 1097 .

The latter term applied here: The national government by its various laws relating to public lands granted to its citizens the privilege of acquiring title thereto. Construing all together as one act, the Desert Land Act by the language used appears to reserve therefrom to the entire public the right of any citizen, after March 3, 1877, to divert, use, and acquire a right in and to the unappropriated waters flowing through, or adjacent to, any lands thereafter patented, such right to be determined by priority. Reservations of this class may be found in Calhoun Gold Min. Co. v. Ajax Gold Min. Co. 27 Colo. 1 ( 59 P. 607 , 615 : 50 L.R.A. 209 : 83 Am. St. Rep. 17 ); Wilcox v. McConnell , 13 Pet. (U.S.) 498 ( 10 L.Ed. 264 ); Wilson v. Higbee (C.C.), 62 F. 723 .

It would not be seriously questioned that such a reservation might be expressly and effectively made in a deed or other evidence of title. Then, when we take into consideration that to determine the extent of the title received through a conveyance of any kind from the government, whether by grant, patent, or otherwise, we must look into all acts in force in reference to the lands intended thus to be conveyed, to ascertain what interests remain subject to transfer, it becomes manifest that there is no difference in principle between a reservation resulting from an act in force at the time and an express reservation in the instrument itself through which title may be asserted.

It would seem, however, that as to what may be the proper term by which any interests thus reserved may be designated, we need not inquire. Nor is it material whether any term has been recognized or established by the courts to cover the privileges and rights reserved or surrendered by the government to the public, or individuals of which the public is composed. Our form of *Page 389

government, constitution, and powers reserved to the government, has necessarily given rise to privileges and rights not fully covered by the common law or by the terms in common use under it. The right of the government to dispose of its public lands, and to deal with all rights incident thereto, in such a manner as it may deem best, h. s long been fully established and recognized by all decisions upon the subject. True, it cannot by legislation determine for any state, after its admission, what the local laws relative to riparian rights shall be ( United States v. Rio Grande Irr. Co. 174 U.S. 690 , 703 : 19 Sup.Ct. 770 : 43 L.Ed. 1136 ); but the general government, in dealing with its public lands, may provide for their transfer as might any other landed proprietor, and make such reservations therefrom by grant, dedication, or otherwise as it may see fit.

Riparian rights may become the subject of a grant or dedication, and may be severed from the soil: Coquille Mill M. Co. v. Johnson

(Or.), 98 P. 132 . This principle is clearly and concisely stated in an opinion by KNOWLES, District Judge, in Howell v. Johnson (C. C.), 89 F. 556, 558 , as follows: "Being the owner of these (public) lands, it has the power to sell or dispose of any estate therein or any part thereof. The water (in question) in an unnavigable stream flowing over the public domain is a part thereof, and the national government can sell or grant the same, or the use thereof, separate from the rest of the estate, under such conditions as may seem to it proper." Decisions to the above effect are too numerous and too well understood to need extensive citation.

By the homestead and other land acts congress granted to the citizens of various states and territories the right, at any time thereafter, to enter upon the public domain and to select a quantity of land, in the manner there specified, and of thereby securing a home, notwithstanding no certain individual was designated to accept and *Page 390

receive such title. The effect of these acts was that the grantor of the public lands, the national government, was to hold these lands in trust for the public, to be acquired by any qualified citizen thereof on compliance with the rules prescribed. Numerous grants in praesenti were also made, to be held in trust by states designated in such grants for any company, person, or persons who might construct any wagon or other roads there indicated. For example, a grant was made to the State of Oregon of alternate sections of public lands, designated by odd numbers, three sections per mile, to be selected within six miles of what was, at the time of the passage of the act, an imaginary road between two given points within the State, upon the doing of certain acts thereafter to be performed, thus reserving to the builders, if any there might be, the right to select the odd sections desired: Act July 5, 1866, c. 174, 14 Stat. 89 ; Cahn v. Barnes (C. C.), 5 F. 326 ; United States v. Dalles Military R. Co. (and seven others), 140 U.S. 599 , 11 Sup.Ct. 988 , 35 L.Ed. 560 ; United States v. Willamette V. C. M. Wagon Road Co.

(D.C.), 42 F. 351 ; United States v. Willamette V. C. M. Wagon Road Co. (C.C.), 55 F. 711 . Such a road in time became a certainty, and more than 30 years after the passage of the act lands were selected, in reference to which it has been held that upon selection thereof the right thereto relates back to the date of filing the map of definite location of the road, shutting out all intervening claims and settlements, regardless of patents issued to settlers thereon (luring the meantime; and this, too, notwithstanding such policy was instrumental in holding in abeyance and withdrawing from settlement large tracts of the public domain for more than a quarter of a century: Eastern Oregon Land Co. v. Brosnan (C.C.), 147 F. 807 . Any settlers on such lands are held to have entered thereon with full knowledge of the law, and to have taken them subject to the "contingent interests" in the land, of such *Page 391

possible road, of such company as might become the beneficiary of the grant: Altschul v. Gittings (C. C.), 102 F. 36, 38 .

Another and more apt illustration is that of the policy of the national government respecting its mineral lands, in regard to which any one, acquiring title to any part of the public domain under the homestead or under any other act, takes such land subject to the exception that he does not acquire title to the minerals known to be therein at the time of entry or patent, whether located for minerals at the time of the inception of the rights of its grantee or not: 5 Fed. St. Ann. §§ 2318, 2319 (U.S. Comp. St. 1901, pp. 1423, 1424); Calhoun Gold Min. Co. v. Ajax Gold Min. Co. 27 Colo. 1 ( 59 P. 607 : 50 L.R.A. 209 : 83 Am. St. Rep. 17 ).

It was in the exercise of a similar prerogative on the part of the government that there was by the act of 1877 given to the public, or to any individual thereof, the right to appropriate and apply to a beneficial use the waters flowing through its public domain. No limit as to the time in which this right may be exercised is made, except in effect that he who first diverts the water and with due diligence applies it to the uses there enumerated is given the better right thereto. It can make no difference, therefore, whether it be termed a grant, reservation, dedication, trust, or other privilege.

This unquestioned power of the owner over the public domain was exercised, and any one entering upon, and acquiring title to, any part of the public domain after the passage of this act, accepted such land and title thereto with full knowledge of the law under which the patent was issued; the import thereof being that this right incident to the soil was reserved by the government, to be held in trust for the public, and that he who first applies the water to a beneficial use shall become the owner of the right thereto, and that the recipient of such title takes it subject to that right which he, in *Page 392

common with others of the public, is privileged to exercise. It is elementary that the grantor can convey no greater title than he has. This rule, as applied to cases of this nature, is clearly and concisely stated in Hume v. Rogue River Packing Co. 51 Or. 237 ( 92 P. 1065 , 1067 ). There the plaintiff was owner of a grant from the State, either directly to himself or by mesne conveyances to others, of all the tide lands bordering upon the river, as well as of all the uplands adjacent to the river above tide water, the title to which was acquired from the United States, and the description of which ran to the meander lines. In discussing this feature, this court, by SLATER, C., says:

"He has no title by express grant from the State to any part of the bed and stream as such; but he does claim title to the entire bed of the stream at the mouth of the river, where, by reason of the shifting of the channel of the river from north to south, and vice versa, and by successive purchases from the State as tide land of the uncovered sands on both sides of the river, his deeds overlap, and apparently, at least, he is, at that point of the river, the owner of the bed of the stream. But this fact, we apprehend, will be of no avail in support of his claim of ownership of the water when flowing over such land, for in any event he could acquire no greater rights thereby than would be given the ordinary and legal effect at such deed by virtue of the statute authorizing its execution and delivery."

It is true that the act of 1870 made it necessary to insert in the patents a reservation of all vested and accrued water rights, rights of way, etc., as well as to make similar reservations in patents respecting minerals; but, as stated, so far as a legal effect of the reservation is concerned, such would have been unnecessary, in that the government could grant no greater right than it had. Acts of this nature, like those requiring patents to be issued for lands acquired under railroad and other grants, under which title passes by virtue of the acts granting the lands, are but supplemental legislation. In *Page 393

this manner the evidence of title may more conveniently be placed of record, and thereby add to the convenience, in many respects, of the holder of the title, but otherwise adds nothing thereto: Cahn v. Barnes

(C. C.), 5 F. 326, 331 ; Pengra v. Munz (C. C.), 29 F. 830, 835 ; Langdeau v. Hanes , 21 Wall. 521 ( 22 L.Ed. 606 ); United States v. Dalles Military R. Co. 140 U.S. 599 ( 11 Sup.Ct. 988 : 35 L.Ed. 560 ); also cases cited in 8 Rose's Notes (U.S.), 466.

A good illustration of the power of the government or other landed proprietor, at all times and whenever desired by it, to grant, reserve, or dedicate a right to any one at any time to acquire title to all or to any part of its public domain in such manner as it might designate — either to the land itself, or to the incorporeal rights appurtenant thereto, whether an easement over it, the removal of the minerals, of the timber, or of the right to the use of all or any of the waters flowing through or adjacent to such land — may be found in the recent case of the United States v. Winans , 198 U.S. 371 ( 25 Sup.Ct. 662 : 49 L.Ed. 1089 ). In that case a suit was brought to enjoin the owners of certain lands on the Columbia River from interfering with the exercise by the Indians on, the Yakima Indian reservation, in the State of Washington, of fishing rights and privileges over, on and adjacent to lands along the Columbia River, patented to the defendants therein, which rights were claimed under the provisions of a treaty made in 1859 between the Indians and the United States. This treaty reserved to them the exclusive right to fish in all streams running on and within certain lands within prescribed limits, and to fish in common with the citizens of the territory at all accustomed places in the vicinity, and further secured to such Indians the right of way over all lands necessary for carrying such reserved rights into effect, together with the privilege of erecting on any of the then public lands temporary buildings for the curing of fish. Subsequently *Page 394

the lands between the Columbia River and the special tract set aside and known as their "reservation" were entered by citizens of that state, and patents, without reservations therein of any kind, were issued to them. Grants from the State of Washington to the shore land fronting the patented lands were also procured by the patentees, together with licenses from the state to maintain devices for taking fish, called "fish wheels." By virtue of these patents, grants and rights thus acquired by the landowners it was maintained that they could preclude the Indians from fishing along the shores and from crossing the patented lands for that purpose, in respect to which it was argued that the Indians, under the rights reserved to them and recognized by the government in the treaty, acquired "merely an executory license or privilege, applying to no certain and defined places, and revocable at will of the United States, to fish, hunt, and build temporary houses upon public lands, in common with white citizens, upon whom the law has conferred no title by occupancy whatever." These contentions were sustained by the United States Circuit Court in that state ( United States v. Winans (C. C.), 73 F. 72, 74 ); Judge HANFORD, inter alia , observing: "The theory that lands conveyed by government patents, after being so conveyed and appropriated by individual citizens, still remain subservient to use and occupation by the Indians, for travel over the same, otherwise than by lawfully established public highways, and for camping grounds, finds no support in the provisions of the treaty, nor in the rules for the construction and interpretation of statutes, which must be applied in the interpretation of the treaty and of the public land laws of the United States." But on appeal to the United States Supreme Court this decision was reversed ( 198 U.S. 381 : 25 Sup.Ct. 662 : 49 L.Ed. 1089 ); the court holding, in substance, that, notwithstanding patents were issued to the lands by the government, the patentees took the same subject *Page 395

to the rights reserved to the Indians thereafter to fish along the shores of the Columbia River, including a right to erect temporary structures for that Purpose, and to retain such easements as would enable the privileges thus reserved to be exercised. In discussing the effect of the patents the court say: "The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land, as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved `in common with citizens of the territory.' The land department could grant no exceptions from its provisions. It makes no difference, therefore, that the patents issued by the department are absolute in form. They are subject to the treaty as to the other laws of the land."

It is clear from the foregoing decision (1) that whether the landed proprietor be the government, a tribe of Indians, or other owner, such proprietor may reserve or grant a right or interest in, over, and appurtenant to, or in any manner connected with, its lands, not necessarily to an individual alone, but to a class of individuals in general, as well as in particular, without limit as to time, application, and use, of the rights or privileges thus reserved, dedicated, or granted; (2) and such right or interest in its public lands becomes effective in favor of those for whom it may be reserved, or to whom it may be dedicated, and against those subsequently acquiring title thereto, even though such rights may not be exercised until after the lands shall have been patented to others; (3) and that, in so far as the binding effect thereof is concerned upon such subsequent purchaser, it is immaterial that such reservations, or exceptions, are not specified in the patents or other instruments of conveyance. *Page 396

Reservations of this class are fully and ably discussed by the Supreme Court of Kentucky in Rowan's Ex'rs v. Town of Portland , 8 B. Mon. 232 . The Supreme Court of New Hampshire, in the case of State v. Franklin Falls Co. 49 N. H. 240 , 256 ( 6 Am. Rep. 513 ), declines either to agree with the reasoning of that court or to follow the rule there enunciated; but the United States Supreme Court, in Morgan v. Railway Co. 96 U.S. ( 6 Otto 716 ) ( 24 L.Ed. 743 ), clearly adopts the reasoning applied by the Kentucky court, and observes that the consideration there given those questions is a full, able, and correct exposition of the law on the subject, with which conclusion we concur. In Rowan's Ex'rs v. Town of Portland , 8 B. Mon. 232 , the dedication related to certain streets adjacent to a stream, and included the right of wharfage or right to land boats and other vessels along that part of the street bordering upon the river. The court, in discussing the legal effect thereof, concludes that the grantor, holding title subject to the use to which it was dedicated, held the title thereto in himself as trustee for the public, which his grantee took subject to such trust, and further observes: "Whether the public at large was or could be the immediate grantee or recipient of this right we should consider it fruitless to inquire. The potential right of use in and by the public was created by the sale and conveyance of the lots, and whether it passed at once to the public, or remained in abeyance, or is the mere result of an estoppel, or vested in the purchasers of lots as a part of the estate conveyed to them, it was in either case alike perfect and beyond the future control of the original proprietor or his alienees of the title on which this right of use was ingrafted." Again, as stated in Pearsall v. Post , 20 Wend. (N.Y.) 111, 119: "It seems to be well settled by the Supreme Court of the United States, by several courts in the neighboring states, to which we may, perhaps, add the court of chancery in this state, that dedications of land for religious and charitable *Page 397

purposes, as well as for public ways, and squares, commons, parks, and other easements in nature of ways, are to be upheld, although there be no person in esse capable of taking as a grantee at the time. It was remarked by Mr. Justice THOMPSON, in Cincinnati v. White's Lessee , 6 Pet. 431 436 ( 8 L.Ed. 452 ), that `the principle, if well founded in law, must have a general application to all appropriations and dedications for public use, where there is no grantee in esse to take the fee.' He adds: `This forms an exception to the rule applicable to private grants, and grows out of the necessity of the case.' These remarks comprehend every conceivable case where a man has furnished evidence of a clear intent to give up his real estate for the purposes of any legitimate public use."

Privileges of this class were not unusual, and were recognized as being subject to dedication in the early history of the law on the subject, as disclosed by further remarks therein of the same court, namely: "I pass over the more usual instances of easements, such as ways, commons, and water privileges, etc., enjoyed either by individuals, towns, or other corporations. * * We may also pass over those which are less common, and one put by Mr. Justice THOMPSON, in 6 Pet. 437 ( 8 L.Ed. 452 ), from McConnell v. Lexington , 12 Wheat. 582 ( 6 L.Ed. 735 ), the reservation of a spring of water for public use. It was made to a corporation, which might turn the spring to its own or public purposes. Thus the user was invoked to establish an individual right. A like case is mentioned in Co. Litt. 56a, a customary watering place in the Inhabitants of Southwarke, for violating which an action was held to lie." In the spring case alluded to it appears that the Commonwealth of Virginia in 1773, by an act known as the "Land Law," reserved 640 acres of land, upon which the spring was situated, for the benefit of those who had settled in a village or city, afterwards to be laid out into lots and divided among such settlers. The spring was in common use by the inhabitants of a village *Page 398

located on this tract, and afterwards claimed by one of the purported grantees of the lot upon which it was situated. The court, however, in an opinion by Mr. Chief Justice MARSHALL, held that the use of the spring by the public and the recognition thereof for a long period of time constituted such a dedication, and that, even though the claimant thereof be considered the grantee of the land upon which the spring was situated, its use for the purposes mentioned, although no reservation was made in the deed, must be deemed to have been reserved. It may be said that in that case the entire public exercised the right to the use of the spring thus dedicated, but it must be remembered that the exercise of this right was merely by the individuals constituting the public.

In the case at bar the public exercises the right in a somewhat similar manner, except on a larger and more extensive scale, in that an appropriation by any individual or corporation gives it a right in and to the flow and use of the water appropriated for the purposes for which it is diverted, which right may afterwards be subject to sale and transfer. But it is clear that, if a dedication can be made to the public of a spring or a stream in the manner indicated in the last case quoted, the owner of any source of water supply may make a like dedication in that or in any other manner determined upon. The manner of making the dedication, as well as its legal effect, must be determined from the act or instrument by which it is made. In the case under consideration it will be observed that the language used is that the surplus waters of the streams and of other sources of water supply designated shall remain and be held free for the appropriation and use of the public for (1) irrigation, (2) mining, and (3) manufacturing purposes.

The manner of appropriating and using the water for irrigation, manufacturing, and mining purposes was at that time and has been at all times since well understood; hence the use by the public and manner thereof is specified, meaning, when interpreted in the light of the *Page 399

then existing facts, the usual manner of applying it for power purposes and of diverting it by means of ditches and other systems in use for irrigation, including also the usual methods in use by miners.

It follows that the rights reserved to the public and dedication of the surplus waters therefor were intended for use in that manner. Construed, then, with the act of 1866 and other provisions of the act of 1877, we are of the opinion that all lands settled upon after the date of the latter act were accepted with the implied understanding that (except as hereinafter stated) the first to appropriate and use the water for the purposes specified in the act should have the superior right thereto. 1

So far as we are able to determine, the question, as here presented, has not heretofore been squarely before any of the courts. But, while not deemed essential to an adjudication therein, we find the act of 1877 considered to some extent in the following cases: Williams v. Altnow , 51 Or. 275 ( 95 P. 200 ) Farm Investment Co. v. Carpenter , 9 Wyo. 110

( 61 P. 258 : 50 L.R.A. 747 : 87 Am. St. Rep. 918 ); United States v. Conrad Inv. Co. (C.C.) 156 F. 123, 128 ; United States v. Rio Grande Irr. Co. 174 U.S. 690 ( 19 Sup.Ct. 770 : 43 L.Ed. 1136 ); Gutierres v. Albaquerque Land Co. 188 U.S. 545 ( 23 Sup.Ct. 338 : 47 L.Ed. 588 ); Kansas v. Colorado , 206 U.S. 46 ( 27 Sup.Ct. 655 : 51 L.Ed. 956 ); State ex rel. Liberty Lake Ice Co. v. Superior Court, Spokane County , 47 Wn. 310

( 91 P. 968 ).

In the first case mentioned, Altnow, who was the proprietor of the land upon which Warm Springs Creek had its source, claimed both as a prior appropriator and as a riparian owner. To his riparian claim it was maintained as a defense that his lands were settled upon after the date of the desert land act, for which reason he was not a riparian proprietor in the sense that as such alleged riparian owner he could assert a right in the stream for *Page 400

irrigation; and this contention was in that case expressly upheld by the trial court. On this point Mr. Chief Justice BEAN observes that Altnow's claim as riparian proprietor (all other parties therein being in the same position in this respect) could not be upheld for two reasons: (1) That he relied upon his claim as prior appropriator and was bound by it; (2) that the lands having been entered since the year 1877, "it is a serious question whether the desert land act does not abolish the so-called modified doctrine of riparian rights, which gives to riparian proprietors the right to use water for irrigation as to all lands through which nonnavigable streams flow, the title to which has been acquired from the government of the United States since the passage of that act." And after quoting from the act, he further remarks: "The government of the United States, as the primary owner of the soil, undoubtedly has the right to make such provisions concerning the waters of nonnavigable streams thereon as it deemed proper, and it is at least a debatable question whether, by the language quoted, congress did not intend to recognize and assent to the appropriation of such waters in contravention to the common-law doctrine of riparian rights as to persons subsequently acquiring title from the United States: United States v. Rio Grande Irr. Co. 174 U.S. 690 ( 19 Sup.Ct. 770 : 43 L.Ed. 1136 )."

In Wyoming the doctrine of priority of appropriation for beneficial use in contravention to the common-law rule on the subject prevails. By legislative enactment in 1886 the water of every natural stream in that state was declared to be the property of, and dedicated to the use of, the public. The manner of appropriation and acquirement of such rights are specified, included among which, priority of an appropriation for a beneficial use was declared to give the better right. It is thus evident that without the provisions of the desert land act the court there held and was bound to adhere to that doctrine. *Page 401

But in Farm Inuestment Co. v. Carpenter , 9 Wyo. 110 ( 61 P. 258 : 50 L.R.A. 747 : 87 Am. St. Rep. 918 ), Mr. Chief Justice POTTER, in discussing the question as to whether an express constitutional or statutory declaration was necessary in the first instance to render the streams and other natural bodies of water the property of the public, and subject to the control of the laws of the state, without reference to riparian rights, says: "If any consent of the general government was primarily requisite to the inception of the rule of prior appropriation, that consent is to be found in several enactments by congress, beginning with the act of July 26, 1866, and including the desert land act of March 3, 1877. Those acts have been too often quoted and are too well understood to require a restatement at this time at the expense of unduly extending this opinion."

In New Mexico Territory, where the doctrine of prior appropriation also prevails, a similar question to that in the Wyoming case came before the court in Gutierres v. Albuquerque Land Co. 188 U.S. 545 ( 23 Sup.Ct. 338 : 47 L.Ed. 588 ). The question there involved the validity of a territorial act permitting the construction of canals and condemning rights of way, etc., in reference to which it was urged that the territorial act was invalid, because it not only assumed to dispose of the property of the United States without its consent, but was in conflict with the legislation of congress and, therefore, void. It was there argued that the waters affected by the statute were public and exclusively the property of the United States; but the statute alluded to permitted private parties and corporations to acquire the unappropriated waters in violation of the right of the government to control and dispose of its property wherever situated. In considering this feature, Mr. Justice WHITE, speaking for the court ( 188 U.S. 552 : 23 Sup.Ct. 341 , 47 L.Ed. 588 ), in his opinion observes: "Assuming that the appellants are entitled to urge the objection referred to, we think, in *Page 402

view of the legislation of congress on the subject of the appropriation of water on the public domain, particularly "referred to in the opinion of this court in United States v. Rio Grande Irrigation Co. 174 U.S. 690 , 704-706 : 19 Sup.Ct. 770 ( 43 L.Ed. 1136 ), the objection is devoid of merit. * * By act March 3, 1877, c. 107, 19 Stat. 377 , the right to appropriate such an amount of water as might be necessarily used for the purpose of irrigation and reclamation of desert land, part of the public domain, was granted, and it was further provided that `all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.'"

In United States v. Rio Grande Irr. Co. the inquiry was into the navigability of the Rio Grande River and as to the effect a proposed dam therein would have on navigation. While it was there unquestioned that the common-law rule was that every riparian owner was entitled to the continual flow of the stream, and that states and territories had the power to change this rule and to permit the appropriation of the flowing waters for such purposes as they deemed wise, the court states that this power "is limited by the superior power of the general government to secure the uninterrupted navigation of all streams within the limits of the United States." It was urged in this connection that the desert land act of 1877 also included therein the right to appropriate the waters of any stream, even though the depletion caused thereby should impede navigation. In the opinion the desert land act, together with that of the acts of 1866 and 1891, are referred to, concerning which the court, by Mr. Justice BREWER, at page 706, of 174 U.S., and page 776 of 19 Sup.Ct. ( 43 L.Ed. 1136 ), comments as follows: "Obviously by these acts, so far as they extended, congress *Page 403

recognized and assented to the appropriation of water in contravention of the common-law rule as to continuous flow. To infer therefrom that congress intended to release its control over the navigable streams of the country and to grant in aid of mining industries and the reclamation of arid lands the right to appropriate the waters on the sources of navigable streams to such an extent as to destroy their navigability, is to carry those statutes beyond what their fair import permits. This legislation must be interpreted in the light of existing facts — that all through this mining region in the west were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the navigability of the rivers into which those waters flow. And in reference to all these cases of purely local interest the obvious purpose of congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the common-law rule, which permitted the appropriation of those waters for legitimate industries."

These appear to be the only cases in which the attention of the court has been cal

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