# In re North Powder River > Oregon Supreme Court · November 10, 1914 · 75 Or. 83 URL: https://www.frixlaw.com/law-library/cases/6904529 ## Case - **Full name:** In Re NORTH POWDER RIVER - **Court:** Oregon Supreme Court - **Decided:** November 10, 1914 - **Citations:** 75 Or. 83; 144 P. 485; 1914 Ore. LEXIS 387 - **Precedential status:** Published - **Opinion:** On rehearing by Moore - **Judges:** Bean, Eakin, McBride, McNary, Moore - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6904529 ## Opinion text *98 Argued on rehearing January 26, former opinion adhered to February 23, 1915. On Rehearing. ( 146 Pac. 475 .) A rehearing was granted in this canse on January 5, 1915. Sustained on Behearing. For appellants there was a brief by Messrs. Gramford & Eakin and Mr. C. H. Finn, with an oral argument by Mr. Thomas H. Crawford. For respondents North Powder Milling & Mercantile Company and James Dalton et al. there was a brief and an oral argument by Mr. Charles F. Cochran. In Banc. Opinion by Mr. Chief Justice Moore. 9. At a rehearing of this cause, it was insisted that an erroneous conclusion was reached in the former opinion, wherein it was determined that the North Powder Mercantile & Milling Company, a corporation could not change the point of its diversion of the waters of North Powder Biver to a point higher up the stream, when such change would injure water-users between the original intake and the new point of diversion, since no testimony was received tending to show that any person would sustain injury by the change. The predecessor in interest and title of the corporation named secured on August 13, 1898, a decree awarding an appropriation from that river of 1,000 inches of water, miner’s measurement, with which to operate a mill: North Powder Milling Co. v. Conghanour, 34 Or. 9 ( 54 Pac. 223 ). It appears from *99 the testimony that in the North Powder Valley the arable land which can be irrigated produces excellent crops of wheat, a market for which is chiefly found at the flouring-mill of the corporation at the railroad station of North Powder. The grain is usually harvested in August, and the farmers begin hauling the crop to the mill about the last of that month in each year. If the mill is started on the 1st of September and thereafter continuously operated, the entire crop is usually ground about July 1st of the following year. The water is then shut off and the mill thoroughly cleaned and put in order so as to be prepared to grind the new crop when enough wheat has been received. Por more than 10 years prior to June 15,1909, when James Dalton, P. L. Smith and J. D. McPhee secured a deed purporting to transfer to them a right to the use of 400 inches of water, it had been the constant practice of the North Powder Mercantile & Milling Company and its predecessor in interest to shut down the mill about July 1st of each year.. The 1,000 inches of water which it had been using for 10 months was thereupon applied to a beneficial use by appropriators higher up the stream until September 1st, when they returned the water to the river in order that the mill might be operated. The corporation and its predecessor not having used any part of such appropriation during the months of July and August for more than 10 years prior to June 15, 1909, the rights of other appropriators attached by prescription to the entire 1,000 inches of water which were not needed for milling purposes during July and August. The North Powder Mercantile & Milling Company had no interest in the 400 inches of water the use of which it undertook to grant to Dalton, Smith and McPhee. The testimony of witnesses opposed to such attempted *100 grant shows that the water, when not used by the corporation, had been appropriated under a claim of right and continuously used adversely from the time the mill shut down each year until it started again. This branch of the case was tried upon that theory. It is believed that the conclusion announced in the former opinion is correct, and we therefore adhere to it. Sustained on Behearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6904529. Public record. Not legal advice.