Opposition Brief — Washington v. Oregon
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IN THE
: Supreme ni of the | nited Si |
OCTOBER TERM, 1930
Original No. ® H
IN EQUITY
THE STATE OF WASHINGTON, COMPLAINANT,
| ; a “i ©.
THE STATE OF OREGON, DEFENDANT.
|. Defendant's Brief in Opposition to Motion to Strike
Affirmative Defenses
Orr a Pen Eg GR wer yr
‘ I. H. VAN WINKLE,
; Attorney Gencral,
‘ JAMES A. FEE
CHARLES Z. RANDALL,
« GEORGE T. COCHRAN,
Special Counsel,
Counsel for Defendant.
Tee
Ci ak Ra ak is ak ak Do ere ae a el
SUBJECT INDEX |
| TEXTBOOKS
‘Parnham, Waters and Water Rights, Vol. 2, p. 1678, § 508 1
| Kinney on Irrigation and Water Rights, 2d Ed., Vol. 2,
aol chuck stat cihiscaschinicssseocinanedcsaabacanin 11
‘6c. J. 48 and 49, § 19(3), and cases cited in notes 27
“CO. J. 692 and 693, § 983 (4), and notes 55, 56 and 57...
RENEE nenenene enna
INDEX OF CASES
“Allen v. Roseburg, 126 Pac. 900; 70 Wash. 422 ................ 7
ma V. California, 288 U. S. 428, 459; 75 L. Hd. 1154,
i a encinccnneseenntestinnsin 8
E
Saryman v. Kast Hoquiam, Boom & Logging Co., 124
Sa I _.sanipabensinnniteinniaonsionontiis 7
‘Bunker Hill, Etc., Co. v. Polak, 7 Fed. (2d) 583, 585
23 (Certiorari denied 269 U. S. 581; 70 L. Ed. 423) ........ 2
Cit of/Raymond v. Willapa Power Co., 167 Pac. 914-
E 916; 98 Wash. Sh iar 7
fissioners v. Buckner, 48 Fed. 533, 536 -................... 5
Farwell v. Brisson, 119 Pac. 314, 66 Wash. 305 _............. 7
Indian v. Kentucky, 186 U. S. 479, 510, 511; 34 L. Ed.
wee e ee meme ewes wesc sees eeseeeseeees
s
we &
:
S
2
"s
a
Larsen v. Johnson et al., (Ariz.) 203 Pac. 874 0
Louisiana v. Mississippi, 202 U. S. 1, 53; 50 L, ah
QS, GBD .....n..n----.c.--20.0--220--e-eeeee-naeeeee-a--secensccsnnnsscensanennn 4
Maryland v. West Virginia, 217 U.S. 1, 41 to 43; 4
Ed. 645, 657 to 658 ae
North Dakota v. Minnesota, 263 U. S. 365, 375, 376; es
Li, Ed. 342, B46 ......-....--..--.-----ceeno--o-rcenn--seessensnassssnsennes —_—
Smith v. Nechanicky, 211 Pac. 880-882; 123 Wash. 8 _... 1
Wyoming v. Colorado, 259 U. S. 419, 468; 66 L. Ed. 999,
4 Gara ent: 8, 6, 7, 11,12
ss
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—
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2
i
Original No. 17
ferne
IN EQUITY
THE STATE OF WASHINGTON, COMPLAINANT,
Vv.
THE STATE OF OREGON, DEFENDANT.
Defendant’s Brief in Opposition to Motion to Strike
| Affirmative Defenses
STATEMENT
The state of Washington has filed a motion to strike
certain portions of the answer filed by Oregon. Such
4 motion “cannot ordinarily take the place of or be
teed Initerchangeably with a demurrer.” 49 C. J. 686,
39%.
“A motion to strike out a pleading as an entirety
cannot be sustained where one or more of the counts,
defenses, or paragraphs therein are sufficient. So a
motion to strike a paragraph or count for irregularity
thowld be denied if any ‘pertion of it is relevant or
fespitidive.” 49°C. J.-692-and 693, $'988(4), and notes
06, 66 and 57 citing cases from 16 states and the U.
k courts.
2
Such is the direct holding of the U. S.C. C. A,
ninth circuit, in the case of, Bunker Hill, Etc., Co. 9,
Polak, 7 Fed. (2nd) 583, 585. (Certiorari denid
U.S. 581; 70 L. Ed.. 423). |
Washington’s brief and motion are directed against
certain portions of Oregon’s answer which it is claimed
set up the defenses of : First—Vested Rights; Second—
Adverse Use; and Third—Estoppel.
THEORY OF THE CASE
The brief accompanying the motion is upon th
theory that because the state of Washington is\the
complainant the rules governing the determination of
the relative rights to the use of the water of the stream
are essentially different from those which would apply »
if the case were between individuals.
I.
In a controversy between states as to the relative
rights to the use of the waters of an interstate streas,
the “Complainant State” brings its suit in its qua
sovereign capacity as “parens patriae, trustee, guart
ian, or representative” of that portion of its iti
whose rights are affected.
Kansas v. Colorado, 206 U.S. 46, 99; 51 L, B4. 956%
| North Dakota +: Minne rota, 263 U. S. 166.
68 L. Ed. $42; 346. -
Krall 0. United States, 79 Fed. 241:
’ ‘Larsen v. Johnson et al., (Ariz.) 203 Pac. ee 28 RS
as a 2
3
Ih.
“Insuch a suit the rights of the state are “‘Indissoln-
bly linked with the rights of the apprepriators” and
“heir situation and what has been accomplished by
them cannot be ignored.”
Wyoming v. Colorado, 259 U. 5. 419, 468; 66 L. Ed.
999, 1015.
ITI.
In such a suit the rights of the appropriaters must
be determined as though the accident of the state line
did not exist and all of the apprepriations had been
made in a single state.
Wyoming v. Colorade, 259 U.S. 419, 470, 471; 66 L. Ed.
999, 1056. ,
We are taught by the case of Wyoming v. Colorado
that the doctrine of appropriation must furnish the
basis for the decision of this case. 7
The doctrine of appropriation recognized in both
states (Complainant’s Bill, page 11) is a doctrine of
vested rights.
“To appropriate water means to take and divert a
specific quantity thereof and put it te beneficial use in
accordance with the Inws of the state where such water is
found, and, by so doing, to acquire under such laws, a
vested right to take and divert from the same source, and
to use and consume the same quantity of water annually
forever, subject only to the right of prior appropriations.”
Arizona v. California, 288 U. S. 428, 459; 75 L. Ed.
1154, 1168.
4
Oregon has alleged that she has done this, in the
paragraph on page 23 of Oregon’s answer, against
which Washington has moved.
Since Washington has asked for the determination
of the relative rights to the use of the waters in emp.
troversy, an allegation on the part of Oregon as to the
existence of certain vested rights in her citizens is
manifestly pertinent to the issues and goes to th
merits of the controversy.
It is true that this allegation is followed by a state.
ment to the effect that the bill filed by Washington is
an attempt to deprive the owners of their property
rights without due process of law and that neither th —
United States nor the state of Washington can do this
Possibly this statement is a conclusion of th
pleader.
If so, it does not render the entire paragraph sb
ject to the motion to strike. The allegations as to the
existence of the rights are pertinent. Under the mk
as set forth at the beginning of this brief the moum
must be denied if any part of the paragraph moved
against is pertinent. re
' “Ordinarily a pleading is not rendered wholly insuffi
cient because it contains legal conclusions in »
the facts which properly belong in it. In other words d
addition of a conclusion of law which may be
drawn from the facts pleaded will not invalidate the
ing. A conclusion of law at variance with, or unsd
by, the facts stated cannot be relied on, and must yied®
the conflicting averments of fact. A statement of ®
conclusions, together with the facts supporting
49 C. J. 48 and 49, § 19(3), and cases cited in notes
27 to 34 citing cases from the United States courts
and from almost every state in the Union.
This is directly held by the U. S. C. C. A., seventh
cireuit, in the case of In Re Marion Mfg. Co., 1 Fed.
{2nd) 903.
In the case at bar the conclusion of the pleader
does not render the paragraph moved against insuffi-
Gent, and because the paragraph contains pertinent
allegations the motion as aguinst this paragraph must
fail.
ADVERSE USER
The authorities cited in the brief of the state of
Washington unde: this head on pages 14 to 19 of the
brief are not in point in a case in this Court between
two sovereign states.
" They have application only to a suit by a subject
against a sovereign. '
> The distinction is pointed out by the Court in Com-
er” ©, Fechner, £8 Fed. 558, S00, where it is
os “The states of this Union, as between each other, or as
them and the United States, are not excepted from
" tets of limitations as to bringing suits by the application
of this maxim.” (Nullum tempus oceurrit regi.)
=
a
Furthermore, this Court has applied the doctrine
of acquisition of title by prescription and adverse pos.
session as against the sovereign states of this Union
in the following cases:
Indiana v. Kentucky, 1386 U. S. 479, 510 to 511; 34 L,
Ed. 329, 333.
Maryland v. West Virginia, 217 U. S. 1, 41 to 48; 54
L. Ed. &45, 657 to 658.
Louisiana v. Mississippi, 202 U. S. 1, 53; 50 L. Ed
913, 932.
These cases are decided not only on the basis of
what the states had done but also what their citizens
had done and the acts of the citizens were considered
in determining the rights of the state.
As riled in the case of Wyoming v. Colorado, supra,
the rights of the state are “indissolubly linked with the
rights of the appropriators.” (259 U. S. 468, 66 L.
Ed. 1015.)
It is alleged in the answer, page 27, that both the
states of Oregon and Washington by statute and de-
cisions recognize the same principles of law as to
adverse possession, laches, and estoppel, and limitation
of time within which real property may be recovered
For the purpose of this motion this allegation must be
deemed admitted. Entirely aside from this technial
admission the state of Washington has recognized tht
the right to the use of water may be acquired by pre
scription in the following cases:
7
Smith v. Nechanicky, 211 Pac. 880-882; 123 Wash. 8.
City of Raymond v. Willape Power Co., 167 Pac. 914-
916; 98 Wash. 317.
Allen v. Roseburg, 126 Pac. 900; 70 Wash. 422.
Berryman v. East Hoquiam, Boom & Logging Co., 124
Pac. 130; 68 Wash. 657.
Farwell v. Brisson, 119 Pac. 814, 66 Wash. 305.
The decisions of the Supreme Court of the state of
Oregon also recognize this rule.
The same principles which led this court to hold
in the case of Wyoming v. Colorado, supra, that the
doctrine of appropriation should be applied to the dis-
pute because recognized by the courts and statutes of
both states would warrant the application to this case
of the doctrine that water rights may be acquired by
adverse possession and prescription.
That being true, if the citizens of the state of Ore-
gon have acquired by prescription and adverse user
the right to use any waters formerly claimed by the
state of Washington, that right must of necessity be
recognized by this Court in determining their relative
rights, |
In the case of Wyoming v. Colorado, this court
recognized that the rights of the respective states to
the use of the water of an interstate stream rested
upon the right of the individual appropriators and that
the right of these appropriators and what has been
done and accomplished by them must.be considered.
“These constituted the foundation of all rural home
building and agricultural development. If they were re-
- 8g .
jected now the lands would return to their naturally arid
condition, the efforts of the settlers and the « itures.
‘of others would go for naught and values mounting into
large figures would be lost.” (259 U. S. 468, 66 L. Ea
' 1016.) . . ; :
It follows then that the allegations in that portion
of page 25 to which the motion is directed and which
are to the effect that the state of Oregon and its citi.
zens “diverted, appropriated, and used under a claim
of right and color of title pursuant to the laws of the
state of Oregon and the recognized custom of appr -
priating waters from said stream in said territory at
said time and applied to beneficial uses,” certain quan-
tities of water with certain priorities and that the
appropriators had “taken, used, held, and carried away
the said waters of said stream openly, notoriously, and
adversely to the state of Washington, its citizens and -
all the world since the dates hereinbefore alleged” are
allegations of the facts upon which the rights of the
appropriators in Oregon depend.
It cannot be held that such an allegation is mt |
pertinent to the issues nor can it be held that such is
an allegation merely of adverse user. It is an allegation
‘of the appropriation which must be the basis of the
decision of the rights of the people of the state of Or
gon. It is therefore pertinent to the matter in issue,
and, under the authorities cited at the beginning df
this brief, even if the words “openly, notoriously, and
_ adversely” be taken as conclusions of the pleader, the
motion could still not be allowed because of the allege.
PAG ATEN ARLE TSE DOL PIO LIL ICG OIE LLL IL LORE GIELE DEP ELIE SE ELON LAE EAA LOE SRLE SG :
|
ions of the pertinent fact included in the paragraph
moved against. We do not think these words consti-
tute conclusions. They are descriptive of the method
of use and are allegations of the ultimate fact in that
respect. What these citizens did is the basis of their
rights and that of the state of Oregon. The dates of
priority are important since under the doctrine of
appropriation which is the basis of the decision in
this case, this court has held “the car dinal rule of
that doctrine is that priority of appropriation gives
superiority of right.” (259 U.S. 470, 66 L. Ed. 1015.)
.
ESTOPPEL
_ The complainant has moved to strike a portion of
page 26 of the answer. . This portion alleges in sub-
stance that the people of the state of Oregon have ex-
pended large amounts and constructed valuable works
and improvements with the notice and knowledge of
the state of Washington and its people and in reliance
upon the appropriations of water made from this
stream, and that neither the state of Washington nor
its people ever protested against the diversion, appro-
priation, ar use of the water, and that by reason of
their conduct they are estopped from claiming any
Tight in the waters or its use, or from interfering
With the appropriations or diversions from this stream.
This paragraph alleges that these things were done
during all of the dates alleged in the answer which is
from 1864 down to date.
| .
10
We thus have an allegation that the people of Ore
gon apprepriated and used the water, went to grest
| expense in relianee upon that use, developed large tracy
of land and built homes, and roads, all upon the faith
of the appropriations and with the actual knowledge
of Washingten and its citizens and that this continued
without protest on the part of the state of Washingt
from 1864 down te the present time.
Under such circumstances the individual appre
priaters in Washington would be estopped. “Equity |
will not restrain the wrongful diversion of a stream
when a land owner permitted the defendant to proceed
with the erection of works and diversions of the water
at very heavy expense, without taking any legal steps
to prevent it for so long a period as seven years’
(Farnham, Waters and Water Rights, Vol. 2, p. 1673,
§ 508.) os
«phe lower owner may lose the right to relief by
permitting the upper owner to make large expe |
tures to effeet the diversion of the water, under te
toppel, the authorities are not quite harmonious. Tie
true rule, as we view the subject, is that unless te |
silence upon the part of the owner can be constr
as a consent or at least an aequiescence, am estapee
will not be worked. Of course, if the silence is conti
for the full period of the statute of limitations asa
- to an action for the recovery of real property, by te
11
laghes of the owner, and the adverse possession and
weer | of the one seeking a right, a prescriptive right
may be acquired.”
Kinney on Irrigation and Water Rights, 2d Ed., Vol. 2,
p. 2037, § 1127.
‘ Particularly is this true as to the claim of. the state
of Washington for injunctive relief.
The authorities cited by the state of Washinaten
in their brief under this head are, like the authorities
upon adverse possession, not in point. They apply only
tocases between a subject and a sovereign and do not
‘apply to cases brought in the United States courts
between two states.
‘ Under the case of Wyoming v. ainda supra, the
measure of Washington’s rights is the rights acquired
by the citizens. If its citizens have lost their rights by
an estoppel, Washington has correspondingly lost its
right.
Furthermore, it will be observed that the case of
Wyoming v. Colorado is decided partly upon'a consid-
eration as to what had been done by the diversion of
_ water in the state of Colorado. It is therefore pertinent
for the state of Oregon to allege what it is doing and
what it has done by means of diversion of water in the
state of Oregon. That being true, so much of the para-
graph as refers to what has been accomplished by the
‘use of the water is pertinent to the issue. Since a por-
tion of the matter ‘moved against is. pertinent, the
motion. must fail as to this paragraph under the | au-
er first .cited in this brief.
12
The state of Washington, acting; as it is, to protes
the rights of its citizeris cannot escape the restilty ¥
the conduct of those citizens in the past. It has a dire
bedring and effect upon the extent of those Citizens’
rights.
That part of page 27 of the answer against which
the motion is directed is an allegation that the states
<o:4 BRO 79% 2:53 >
adverse possession, aches, caper and limitation.
The case of Wyoming v. Colorado, supra, is ay.
thority for the proposition that Where the two stabs
both recognize the same doctrine by their statutes and
their décisions the doctrine will be applied to contre
versiés between the states. In so ruling the Court held:
“Bach of these states applies and enforces this rule in
her own territory and it is the one to which intending |
appropriators would naturally turn for guidance. The
principle on which it proceeds is not less applicable #
interstate streams and controversies than to other
Both states pronounce the rule just and reasonable a
applied to the natural conditions in that region.” (25
U. S. 470, 66 L. Ed. 1015, 1016.) This reasoning
applies with equal force to the paragraph of the pleat
ing under disc ussion. Since both states recognize thes
rules, there is no reason why they should not be appliel
in these proceedings. They are the rules whieh har
governed appropriations of water in the Western stals
since the doctrine of appropriation was first origina
13
They are the rules which govern the rights of the
isfividual appropriators in each state. They are the
‘aes which govern all the appropriations made from
, this stream. It cannot be supposed that they would be
applied in determining the relative rights of the Ore-
gm appropriators and of the Washington appropria-
iors in their respective states and that their application
would then stop at the state line.
This controversy is essentially a proceeding to
determine the relative rights between all of the appro-
priators from this stream. No different rules will be
applied in determining such rights than if the appro-
priators were all in one state.
The state of Washington appears only for the pro-
tection of the rights of its citizens. There is no magic
worked by the appearance of the state as complainant.
The rights of the state depend upon the rights acquired
or lost by its citizens. These rights must be determined
under the laws and customs applicable and in force in
the territory concerned.
Respectfully submitted,
I. H. VAN WINKLE,
Attorney General,
JAMES A. FEE,
CHARLES Z. RANDALL,
GEORGE T. COCHRAN,
Special Counsel,
Counsel for Defendant.
—
OF THE
UNITED STATES
a ~ fd
a , $35
No“Mf ORIGINAL
OCTOBER TERM, 1932.
THE STaTE OF WASHINGTON,
Complammant,
v.
Tue Stare or Onecon, Defendant. |
RETURN TO RULE TO SHOW GAUSE
G. W. Hamitton,
: Attorney General,
JOHN ©. Hurspoon,
Assistant Attorney General,
FRED J. CUNNINGHAM,
. Attorneys for Complainant,
State of Washington. « sy
is Qaes and Postotice Addreas: ee ee ;
IN THE
“SUPREME COURT
OF THE
UNITED STATES
NO. 17 ORIGINAL
OCTOBER TERM, 1932.
- Tue State or WASHINGTON,
Complainant,
v.
Tue State or OrEcoN, Defendant.
RETURN TO RULE TO SHOW CAUSE
G. W. HaMILTon,
Attorney General,
JOHN C. HuRSPOOL,
Assistant Attorney General,
Frep J. CUNNINGHAM,
Attorneys for Complainant,
State of Washington.
4 Office and Postoffice Address: Temple of Justice, Olympia, Washington.
_- aT 5
POEL ENE PEPE
IN THE
SUPREME COURT
OF THE
UNITED STATES
NO. 17 ORIGINAL
OCTOBER TERM, 1932.
THE STATE OF WASHINGTON,
Complainant,
v.
THE STATE OF OREGON, Defendant. |
RETURN TO RULE TO SHOW GAUSE
To the Honorable, the Supreme Couri of the
Umited States
The State of Washington, complainant in the
above entitled suit, does hereby make return to the
rule and order to show cause why the above entitled
case should not be dismissed for want of prosecution
and for cause why said case should not be dismissed
and respectfully shows to the honorable court:
That the above entitled suit was instituted in
good faith for the purpose of securing an adjudica-_
tion of the rights to the use of the waters of the Walla
Walla river, an interstate stream, between the state
of Washington and its citizen users of the waters of
? ao i
PN 7
, |
said stream and the state of Oregon and its citizen
users of the waters of said stream on the other; that
at the time of the commencement of said suit the
dates of appropriation and priority of the users of
the waters of such stream in the state of Washington
and the amount to which each was entitled had been,
as between themselves, adjudicated in the state of
Washington by a decree of the superior court of -
Walla Walla county, Washington, and adjudication
; proceedings had been pending before the circuit court
of the state of Oregon for Umatilla county for a de-
termination of priorities and rights of the users of
the waters of said stream in the state of Oregon, as
between themselves, for more than a year and all the
testimony relating thereto had been taken, and it was
anticipated that very shortly after the institution of
the present suit a decree determining such priorities
and rights ~vould be filed in the circuit court of Uma- —
tilla county, Oregon, in which such stream was lo-
cated; that after consultation with the attorneys for
the state . | gonit was deemed advisable in the in-
terest of economy and clearness to await the entry of
such decree and thereupon stipulate such priorities
and other matters as might be agreed upon; that con-
; trary to expectations said cireuit court did not enter
4 its final decree adjudicating such water rights until
the 16th day of May, 1932; that certain of the claim-
4 ants to such waters, not being satisfied with such de-
cree, appealed from the same to the supreme court of
the state of Oregon, where said cause was not decided
MRC it Se Re
ieee
DTS RT TE TS Me Ee ee Na |
| _
until December 13, 1932 (In re Waters of Walla
Walla River, see 16 Pac. (2d) 939).
That the taking of the testimony in the adjudica-
tion of the water rights in said stream in the state of
Washington with certain tributaries occupied a pe-
riod of three months, and the taking of the testimony
in the adjudication of the water rights in said stream
and its tributaries in the state of Oregon occupied a
like or longer period, both due to the fact that the
lands involved were in small tracts, making the num-
ber of claimants in each instance very large and the
expense of taking such testimony very great; and it
was felt by the attorneys for the state of Washington
that, upon the entry of the decree in the Oregon court
finally adjudicating the water rights in that state, it
was probable that in a great portion of the cases the
priorities between the users in the two states could
be stipulatec and the issues so narrowed as to elimi-
' hate a large portion of the expense and in the end an
earlier determination of the present suit be reached,
and this seemed to be concurred in by the attorneys
for the state of Oregon; that the delay caused by the
failure of the circuit court of Umatilla county, Ore-
gon, to enter its décree and the taking of the appeal
_ from such decree and the additional delay caused
thereby were not anticipated since no appeal was
taken from the decree of the superior court of Walla
Walla county, Washington, adjudicating such wa-
ters; and it still is complainant’s belief that the
course pursued was the best suited to the situation;
6
that, in addition to the above situation, it seemed best
to counsel for both states that additional studies he
made for the purpose of determining the duty of wa-
ter, the flow of seepage and such matters which might
aid in a solution of the matter before the court, and
both the state of Washington and the state of Oregon
have, during the irrigating season of 1932, had
studies made of these matters and such studies have
been made by experts from the United States Depart-
ment of Agriculture engaged in similar work in
Washington and Oregon and loaned to the respective
states for such purpose, together with other men fa-
miliar with such matters, such investigators working
in cooperation with each other; that because of the
other work in which the investigators for the state of
Washington have been engaged, their reports were
delayed and have just been received.
That notwithstanding the taking of the appeal
to the supreme court of the state of Oregon from the
decree of adjudication by the-circuit court of Uma-
tilla county, Oregon, counsel for the state of Wash-
ington were having their assistants check over the
‘report of the state engineer of Oregon and the decree
of said circuit court so as to be prepared as soon as
possible after any decision in the supreme court of
Oregon to take up with counsel for the state of Ore-
gon the question of the stipulation hereinbefore re-
ferred to.
_In addition, it was suggested by the state of Ore-
gon that additional investigations and studies be
ai sae eit
Pee ree vane ae
Yr
7
made over a period of years. This, however, after a
thorough discussion and conference, was not agreed
to and counsel for the state of Washington, deeming
that a master should now be appointed, were prepar-
ing an application for such appointment which is
filed with this answer.
That both states have expended considerable
money in making the investigations hereinbefore de-
scribed and in otherwise preparing for a trial of this
cause, and the issues involved are of great impor-
tance to the two states concerned and their inhabi-
tants and a dismissa! would result in hardship and
loss.
WHEREFORE, the complainant prays that the rule
and order to show cause why said cause should not be
dismissed be vacated and dissolved and that petition-
er’s application for the appointment of a master be
considered and granted.
G. W. Hamiuton,
Attorney General,
JOHN C. Hurspoo.,
Assistant Attorney General,
FRED J. CUNNINGHAM,
Attorneys for Complainant,
State of Washington.
STATE OF WASHINGTON,
County of Thurston. | ‘ou
G. W. HaMILTon, being duly sworn on his oath °
according to law, deposes and says: That he is the at-
torney general of the state of Washington and who,
as such, at the direction and upon the request of the ©
governor of said state, instituted the foregoing suit +
and makes the foregoing return to rule to show cause;
that he has read the return and that the facts therein
set forth, save and excepting where averred on infor-
mation and belief, are true, and that as to the facts
therein alleged as upon information and belief affiant
is credibly informed and verily believes that the said
facts are true.
G. WV HAMILTON
Subscribed in my presence and sworn to before
me this 31st day of January, 1933.
JENNIE M. TATTERSALI,
Notary Public in and for the State at
Washington, residing at Olympia
© FILE COP Peas
2 Canis ClLMURE OF
peo one ne ett
7
bee PONE ome Se eee + eee
IN THE
SUPREME COURT
UNITED STATES
_
OCTOBER TERM, 1930
NO. ¥, ORIGINAL
//
\
THE STATE OF WASHINGTON,
Complainant,
Vv
THE STATE OF OREGON,
Defendant.
REPORT OF THE SPECIAL MASTER
WILLIAM W. RAY,
Special Master.
ert aleetee on’, ee =e ec es
INDEX TO REPORT
P.
Submission of the Report of the Special Master ......... a
Report of Special Master ....... 2... 600-0 eee e ce eeeuee, 3
Thee PReRGIMGS 6occccccccccccccnccssccsscecesesescees ay
BM of Complaint ....ccccccccccccccscccsscsccces 1 |
Answer ........ee000: PUT TTTTTTTITPT TTT Tre 7 |
BOMNY oc ccc cccccccccccccccccccescccscsscssceses li
Stipulations ..........ccccecccccccescescscccsscenass 20
Stipulation No. 1 ........--.ececeeeeccceeeeseees 20
Stipulation No. 2 .........- sees ec eeeeeeeeecceens 21
Stipulation No. 3 ......... cece cece eee eeeeees 26
Stipulation No. 4 ......... cece cece cence eeeenens 38
Stipulation No. 5 ........00: cece eeee eee eeeenens 38
Stipulation No. 6 ...........ccecceeeeeeeeeneenes 43
Stipulation No. 7 .......6.. ee cece cece eee eeeeeees 44
Stipulation No. 8 .........60e eee eee cece eeeeeeees 44
Stipulation No. 9 ......... 6. cece e eee eee eee eeees 44
Stipulation No. 10 .........- cece cece ener eeeees 45
Stipulation No. 11 ..........-. cece eee cece eeeees 45
- D.. PPPPPPPTTTETTTETITILIT ETI 46
The Law Applicable to Division of Waters of
Interstate Streams ............. 0 cece cc ececenees 46
Wine Was onccccccccccccccssccccccccccsccesessccess 51
Development in Washington ..........---++++555: 51
Development in Oregon ...........-+00seee000% 53
The Gardena Filing .............--eeeeeeeceeeees 59
Water Uses within the State of Oregon ........---++++: 75
Evidence as to Ground Water and Use of Wells in
PPP errr rrr rr rrr rr rrr errr rere 100
Summary of Findings of Facts
Legal Conclusions ...........---sseeeeeceeeereeee
Recommendations for a Decree
TABLE OF CASES
Page
Carnes v. Dalton (Ore.) 110 Pac. 170 .................. 50
Connecticut v. Massachusetts, 282 U.S. 660 ........ 47, 48, 49
ps EE 66560600050 0060460040000:000006060m0 71
Ide v. United States, 263 U.S. 497, 506 ................ 109
In re Water Rights in Silvies River, 237 Pac. (Or.)
RE er ere rere re Peer rer ree 69
In re Water Rights in Alpowa Creek, etc., 224 Pac.
SPIE odd ec aba b¥ss-e0es bans éa'as se bene) 70
Kansas v. Colorado, 206 U.S. 46 ..................... 47, 50
Kendall v. Joyce, 93 Pac. (Wash.) 1091 ................ 70
Nebraska Inv. Co. v. Corlett (Wash.) 172 Pac. 851 ....... 50
New Jersey v. New York, 283 U.S. 386 ................ 47
Sander v. Bull, 135 Pac. (Wash.) 489, 491 .............. 70
Savage v. McCorkle (Or.) 21 Pac. 444 ...............:.. 50
Savage v. Tacoma (Wash.) 112 Pac. 78 ................ 50
Sowards v. Meagher, 108 Pac. (Ut.) 1112,1116.......... 69
eS wl haw 109
Wiel’s Water Rights in the Western States, Third
Edition, Vol. 1, page 406 ....... MOET TT OFT ET PPP eeee 71
Wrathall v. Johnson, 40 Pac. (2d) (Ut.) 755, 783 ........ 71
Wyoming v. Colorado, 259 U.S. 419 .................. 47, 48
— —
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1930—NO. 17, ORIGINAT.
THE STATE OF WASHINGTON,
. Complainant,
THE STATE OF OREGON, ;
Defendant.
Submission of the Report of the Special Master.
In the cause entitled The State of Washington v. The
State of Oregon, being No. 17 Original, October Term, 1930.
order dated February 20, 1933, as follows:
“The return of the complainant to the rule issued
herein to show cause why this case should not be
dismissed for the want of prosecution, is received
and filed.
“The motion for the appointment of a_ special
master is granted, and it is ordered that William
W. Ray, Esquire, of Salt Lake City, Utah, be, and
he is hereby, appointed special master in this cause,
with authority to summon _ witnesses, issue sub-
poenas, and to take such evidence as may be intro-
duced and such as he may deem it necessary to call
for. The master is directed to make findings of fact
and conclusions of law, and to submit the same to
this Court with all convenient speed, together with
his recommendations for a decree. The findings,
conclusions and recommendations of the master shall
be subject to consideration, revision or approval by
the Court. The master shall be allowed his actual
expenses and a reasonable compensation fo. his ser-
vices to be fixed hereafter by the Court. The allow-
this Honorable Court appointed me as Special Master by its
2 RPSL a
2
ances to him, the compensation paid. to his steno-
graphic and clerical assistants, and the cost of print-
ing his report shall be charged against and be borne
by the parties in such proportions as the Court here-
after may direct. If the appointment herein made
of a master is not accepted, or if the place becomes
vacant during the recess of the Court, the. Chief
Justice shall have authority to make a new desig-
nation which shall have the same effect as if origi-
nally made by the Court herein.”
Pursuant to the above order, and.at the request of both
parties, I heard the case on stipulations of fact and oral
testimony. I held public hearings as follows:
Portland, Oregon, April 3, 1933.
. Walla Walla, Washington, August 23 and 24,
1933. —
Portland, Oregon, February 12, 1934.
Walla Walla, Washington, March 26, 27, 28, 29,
30, 31, April 2, 3, 4, 5 and 6, 1934;
at which hearings the parties appeared before me as Special
Master by their respective counsel, presented their evidennee,
consisting of 1195 pages and forty-seven exhibits, and there
- after submitted to me abstracts of the testimony and briefs
with respect to findings of fact, conclusions of law and recom-
mendations for a decree which they respectively desired made
in the case.
Pursuant to the above order of this court, I have
reported the testimony and the exhibits received by me as
Special Master by the filing of the same in the office of the
Clerk of this Court, with my certificate; and 1 hereby sub
mit to the Court my findings of fact, conclusions of la¥
and recommendations for a decree.
Respectfully submitted,
WILLIAM W. RAY, |
Special Master.
ne
Ps Ee.
—
8
IN THE
SUPREME CouRT
OF THE
_UNITED STATES
OCTOBER TERM, 1930
NO. 17, ORIGINAL
Complainant,
‘THE STATE OF WASHINGTON,
.
, 3 ;
\
THE STATE OF OREGON,
Defendant.
REPORT OF THE SPECIAL MaSTER
THE PLEADINGS
The State of Washington, on July 22, 1931, filed, with
leave of court, its bill of complaint in the Supreme Court
of the United States. In response to process duly served,
the State of Oregon, October 5, 1931, filed its answer to
said bill of complaint, to which answer a reply was filed
_ May 2, 1932.
The purpose of the suit, as disclosed by the allegations
of the complaint, and the relief sought, is to have this court
determine the relative rights of the states of Washington and
Oregon to the use of the waters of the Walla Walla River
and its tributaries,
4 non-navigable interstate streani flowing
?
bh Bh
—_
4
within both states, and to enjoin the State of Oregon from con-
tinued interference with the rights of thy State of Wash-
ington.
Bill of Complaint.
The bill of complaint alleges that the Walla Walla
River is a non-navigable stream rising in the Blue Moun-
tains- in the Northeastern corner of Umatilla County, State
of Oregon, and flowing thence northwesterly about thirty
miles within the State of Oregon to the Washington-Oregon
jine, and thence northwesterly for a distance of about thirty
miles within the State of Washington to its juncture with
the Columbia River; that the first twelve or fifteen miles
of the river is through a narrow canyon with no irrigable
lands adjacent to the stream; that the remainder of the
river in Oregon is bordered with irrigable lands; that the
stream divides into several designated branches within the
. State of-Oregon, which. branches are the recipients of the
waters arising in small streams and springs adjacent to such
branches; that it is necessary to the production of successful
crops that the lands along the stream be irrigated; that a
like condition obtains as to much of the laud along the
stream in Washington; that certain soils available to irriga-
tion from the river will produce abundantly when irrigated;
that the waters of the Walla Walla River come from
springs and from the mel‘ing of snow and the rainfall in
the Blue Mountains; that after about June first of each
year, because of the melting of the snow and the want of
sufficient rainfaH, the flow of the river is dependent up0o
springs; that as a result the amount of stream flow in late
July and August is much less than during the earlier moiiths;
that the stream flow is variable from year to year, but that
in normal years the early spring flow is about 400 cubic feet
5
per second of time and in late July and August about 150
cubic feet per second; that due to drought prevailing during
the past eight or ten years the stream flow has heen only
about two-thirds of the normal amount; that the lands
riparian to the Walla Walla River both in Oregon and
Washington were settled and segregated from the public
domain mostly prior to 1870, but that the cultivation of
land prior to 1870 was largely confined to sub-irrigated
lands lying along the banks of the stream; that about 1870
there commenced the use of water upon lands along the
river which required irrigation, and that such use gradually
increased until in 1892 there were so irrigated in Oregon
about 1200 acres of land and about 8500 acres of land in
Washington; that of the 8500 acres of land being farmed
in Washington at least 7000 acres were of such character
and so situated that they required irrigation for the produc-
tion of crops; that in 1892 the irrigated areas had so
increased that it required all of the flow of the Walla Walla
River and its tributaries during the late summer months
to properly irrigate such lands; that the 7000 acres of land
in the State of Washington are in a high state of cultivation
devoted to the growing of fruits, alfalfa and other crops, and
furnish homes for more than one thousand people and have a
value, except for the fact that they are deprived of water
by the wrongful acts of the State cf Oregon, in excess of
$20,000; that since 1892, and particularly since 1920, addi-
tional lands have been put under irrigation in the State of
Oregon, which lands have drawn water from the flow of the
Walla Walta River during the ‘low water season; that said
hew lands put under irrigation in Oregon have been located
at greater distances from the stream where the topography of
the country is such that the waste and seepage water no
longer returns to the stream ; that the flood waters occurring
SP ir CPA, OK
6
in the early spring are now diverted for the irrigation of
large areas of lanc in the State of Oregon under appropria-
tions subsequent to the Washington appropriations and that
the appropriators of flood waters extend their use of waters of
said stream beyond and after the flood water period, thereby
depriving the State of Washington of water to which it is
entitled and lowering the ground water table and destroying
the sub-irrigation of land in the State of Washington; that
such diversions and uses have been made under permits from
the State of Oregon and that the State Engineer of the
State of Oregon threatens to and will continue to issue
further permits and license further wrongful diversion of
the waters of said river within the State of Oregon; that
in addition thereto the State of Oregon has fixed and per-
mitted an excessive dut:’ of water in disregard of the rights
of the users of water in the State of Washington, which
excessive use deprives the water users in the State of Wash-
ington of water to which they are entitled; that thereby the
water users in the State of Washington have been and are
being deprived of sufficient water to properly irrigate sir
lands and are unable to successfully grow crops, and that
unless the wrongful conduct of the State of Oregon shall be
restrained, lands in the State of Washington will be rendered
wholly unproductive, to the great and irreparable injury of
the State and its land owners; that the State of Washington
and the State of Oregon each by their statutes and the
decisions of their courts recognize the doctrine of riparian
rights, so that the owner of land riparian to a stream is
entitled to his proportionate share of the waters of suc
stream for the purpose of irrigation, subject to the require-
ment that such riparian user shall beneficially apply such
water within a reasoncble time; that each of said states
further recognizes the doctrine of appropriation whereby
7
the first appropriator in time is first in right, subject only
to vested riparian rights; that the amount of the appropria-
tion is fixed as of the time when the work necessary to put
the water so appropriated to a beneficial use is initiated,
accompanied with due diligence; that the more recent de-
velopments in Oregon have been on non-riparian lands;
that the State Engineer of the State of Oregon is empowered
to supervise the appropriation and distribution of waters
within such state, and that the State of Washingon has
requested of said State Engineer an equitable division of
the waters of said stream, which request has been denied;
that unless restrained the State of Oregon will continue the
wrongs above set forth until all of the waters of the Walla
Walla River are diverted and the citi7@ms of the State of
Washington deprived thereof during the irrigation season.
The State of Washington offers to do complete equity in the
premises and alleges that it has no adequate remedy at law
and no remedy in any court except the Supreme Court of
the United States. The State of Washington asks that this
court exercise its sole jurisdiction over the determination of
the respective rights of the States of Washington and Oregon
and their citizens to the use of the waters of the Walla
Walla River and its tributaries in said states, and that the
State of Oregon be enjoined and restrained from diverting
from the Walla Wallar River any of the waters of said
Streams to which the State of Washington and its citizens
are found to be entitled.
Answer.
The answer filed by the State of Oregon adraits the
auegations of the bill as to the sources and the course of
the Walla Walla River, but denies some of the allegations
8
of the Washington complaint as to the dividing of the river
into branches in its course. The defendant admits that after
the stream separates at Milton, Oregon, it flows in a wide
valley and that several springs and small streams arise in the
valley, which springs and streams naturally flow into and
join the main branches of the river either before or after
they pass into the State of Washington, but alleges that
the amount of flow from such source during the summer
and irrigation season of each year is limited. Defendant
admits the necessity of irrigation to the successful gyowing
of fruit, alfalfa and vegetables within the State of/ Oregon
and admits that along certain parts of the river jn Wash-
ington irrigation is necessary to the production of crops.
The answer then proceeds to set forth in detail the
areas in Oregon along the river which require irrigation,
the amount so required and the reasons for such water
requirement; admits that the waters of the Walla Walla
River come from springs, from melting of the snow and the
rainfall in the Blue Mountains in which it rises, but alleges
that after about the first of June of each year little of said
flow comes from melting snow or rainfall directly; alleges
that the springs contributing to said river gradually de
crease in flow, so that ordinarily the flow of the stream
in the latter part of July and during August of each year
is greatly diminished in volume as compared with the flow
during earlier months; that said stream varies from year
to year and that in normal years the flow in the early spring
is about 400 cubic feet per second, but the defendant denies
that in the later part of the irrigation seeson the normal
flow is 150 cubic feet per second or thereabouts or that
during the past eight or ten years it has been any amount
in excess Of 80 cubic feet per second. Defendant admits
that during the last eight or ten years the flow of the river
—- - 5
9
has been decreasing, but denies that it is only two-thirds of
the normal flow. Defendant admits that the lands riparian
to the Walla Walla River both in the States of Oregon and
Washington were settled mostly prior to 1870, but denies
that the cultivation of lands along the banks of the stream
was limited largely to comparatively narrow strips of sub-
irrigated land, or that the existence of such sub-irrigated
lands was the cause of early settlement. Defendant alleges
that during and prior to 1870 there had been diverted and
appropriated from said stream system by means of ditches,
dams and headgates for stock, domestic, irrigation and power
purposes about 19 cubic feet per second of water, which
water had been applied to the irrigation of about 700 acres
of land and to power purposes, which waters so appropriated
are still beneficially used within the State of Oregon. De-
fendant admits that since 1870 such uses have gradually
increased. Defendant denies that about the year 1892 there
were irrigated from said stream system in the State of
Oregon only 1200 acres of land and alleges that on said
date not less than 5831 acres of land were irrigated in Um-
atilla County, Oregon, from the waters of said stream and
its tributaries. The defendant denies that 8500 acres of land
vere irrigated or were using water for the production of
crops within the State of Washington at the end of the year
1892, or that there was any larger acreage irrigated from
said stream or its tributaries than 6167.69 acres. The de-
fendant alleges that of said 6167.69 acres irrigated in
Washington during 1892, 3,024 acres lay along the Walla
Walla River, the East and West branches of the Little Walla
Walla, along Mud and Pine Creeks, and that said lands are ;
principally Sub-irrigated from the waters of said stream;
the defendant further alleges that no part of said 7000 acres
in the arid belt within the State of Washington was placed
oe CADPR ce TH
«
.
SO et ee
10
under irrigation until the year 1898, when 80 acres were
irrigated, and that thereafte> the reduction of said lands
to cuitivation was slow, small in amount, and that in the
year 1907 only about 1500 acres were irrigated; that in the
year 1908 or 1909, because of shortage of water for the
irrigation of said lands, a contract was entered into with
the City of Walla Waila for the use of sewage water from
the City of Walla Walla upon said lands, and that a pipe-
line was constructed four and one-half miles in length with
a carrying capacity of sixteen cubic feet per second for the
utilization of said sewage water, and that thereby said
sewage water was made available for the use of Washington
irrigators in the year 1912. The defendant admits that the
7000 acres of land lying in the arid belt in the State oi
Washington along the Walla Walla River will not produce
crops without irrigation, but denies that any of said lands
required water in the year 1892 or that the same were
irrigated at that time. Defendant denies that said 7000
acres, or any acreage in excess of 5,000 is in a high state
of cultivation or devoted to the growing of crops or the
furnishing of homes for any number of people in excess of
600, or that the same is worth a sum in excess of $20,000,
or any other sum; admits that since 1892 there have been
additional lands put under irrigation in the State of Oregon
and that more of the full flow of said stream, during the
summer months, has been taken therefrom and used upon
said lands; defendant denies that said increase has been
more particularly since 1920 or that said lands brought under
irrigation have been further away from the banks of the
stream or that the topography of the country is such that
waste and seepage water does not return to the stream #&
was the case with earlier appropriations; denies that flood
or excess waters of the stream in the early spring have
11
been appropriated for the irrigation of large areas of land
in Oregon or that said appropriations so made are subsequent
to Washington appropriations or that said appropriators
of flood waters have increased from time to time their
appropriations in disregard of thé rights of Washington
users or extended their use of flood waters beyond and after
the recession of the flood waters to the detriment of Wash-
ington users, or that any such use has lowered the water
table along the stream and destroyed the sub-irrigation
of Washington lands; admits that diversions from the
stream have been made under permits issued by the State
Engineer of Oregon and alleges that since the year 1909 said
permits have been granted under the general law of the
State of Oregon; denies that the State of Oregon has in the
past issued, or threatens in the future to issue permits for
the wrongful use of the waters of Walla Walla River or that
the State Engineer has fixed the duty of water at an exces- 5
sive amount without consideration of the rights of Washine- ;
ton users or that any use in Oregon has deprived the Wash- i
ington users of water to which they are entitled: denies that i
by reason of use in Oregon, Washington appropriators have
been or are being deprived of sufficient water to irrigate
their lands or are unable to successfully grow crops on their
lands or that their crops and orchards are being destroved
or will be rendered wholly or at all unproductive.
The State of Oregon by way of defense, alleges that
in the past the State of Washington and its users have
from year to year increased their irrigated acreage without
regard to the rights of prior appropriators and have
unreasonably and excessively increased the amount of water
taken from the stream and its tributaries, and are them-
Selves thereby causing loss and injury to the irrigators in
Washington if said irrigators are suffering because of an
SPP EEE I ON ETNA IPI st
12
insufficient water supply; that Walla Walla County, Wash-
‘acton, and that part thereof in which the Walla Walla
iver, Mill. Yellowhawk, Garrison, Titus, Cottonwood, Blue,
tteser, Russell, Pine. Mud, Little Mud, Done and Stone
Creeks lie, is in the same water shed as the Walla Walla
River, the Tum-a-lum River and the tributaries of said Walla
\VValla River and said Tum-a-lum River on the Oregon side of
the state line; that all of said streams in Walla Walla County
sve tributaries of the Walla Walla River; that Walla Walla
is 2 municipal corporation having a population of fifteen to
twenty thousand; that said city appropriates and uses for
municipal purposes from Mill Creek, which stream arises
in the State of Oregon and is the principal tributary of the
\Walla Walla River in the State of Washington, from 22 to
28 cubic second feet of water; that said water is completely
consumed by said city for municipal purposes; that since
the vear 1919 and up to 1926, there has been appropriated
and used in Walla Walla County, Washington, from the
above named streams, water for the irrigation of 3490.76
neres of land and that during said period of time only
1573.98 acres of land within the State of Oregon have been
»laced under irrigation from the waters of the Walla Walla
River and its Oregon tributaries; that the State of Wash-
ington, through its agencies, has permitted and allowed
excessive use of waters upon Washington lands; that between
'919 and 1926, said state permitted and allowed the use
of one cubie second foot of water from April Ist to July Ist
for the irrigation of each 75 acres of: land; one cubic second
foot of water to each 106 acres. of land from July Ist to
Oetober Ist of each vear, and frem October Ist to April Ist
of each year one cubic foot of water per second to each 5)
acres of land; that during the same period Washington
‘srigators have increased their use from said streams natur-
13
ally tributary to the Walla Walla River to a greater extent
than Oregon irrigators have increased their use from the
Oregon tributaries; that the State Engineer of the State of
Oregon has established a duty of water of one-half inch to
the acre for the irrigation season in said territory and has
made all permits granted since 1909 for the use upon lands
irrigated under Oregon permits subject to all prior existing
rights; that in the year 1926 there were more acres irrigated
in Walla Walla County, Washington, than in Umatilla
County. Oregon, from the Walla Walla River and its tribu-
taries; that in the State of Washington during said year
theie were 25,269 acres under irrigation; that 23,271 acres
were farmed and irrigated while 2,018 acres were under
existing ditches in various stages of development, and that
the duty of water fixed by the State of Washington was
applied to the lands so irrigated; that during the same
year the State of Oregon had but 18,269 acres under irri-
gation from the Walla Walla River and its tributaries; that
about 1904, there was commenced the deveiopment of the
Attalia project in Walla Walla County, Washington, con-
sisting of about 2400 acres; that in 1926 the flume carrying
Water to said Attalia lands was destroyed and part of the
dam diverting said water was washed away; that neither
said flume nor said dam has ever been replaced, and that
since 1926, only about 100 acres of said land has been
irrigated, and that the water uppropriated for said use is
now flowing unused into the Columbia River and that about
20 second feet of water flows in the Touchet River above said
Attalia project and is not being put to a beneficial use.
Defendant admits that the states of Washington and Oregon
each recognize by their statutes and court decisions the
existence of the doctrine of riparian rights prior to 1909, but
denics that the owner of land riparian to a stream in Oregon
ae al
14
is entitled to his proportionate share of the waters flowing
in such stream for the purpose of irrigation or subject. to
any such requirements as that such riparian use be perfected
within a reasonable time or limiting such riparian right
+4 such beneficial use or together with the” doctrine of
appropriation whereby the first appropriator in time is first
in right, subject only to previously acquired riparian rights,
or that the amount of the appropriation is to be dated as
of the time when the work was instituted for the putting
of the water to a beneficial use by the exercise of due dili-
gence.
The state of Oregon, by way of further«defense alleges
that in the year 1909 a statute was passed by Oregon pro-
viding a system for the regulation, control. and distribution
and use of waters of the state and providing that, subject
to existing rights, all waters within the state of Oregon
may be appropriated for beneficial use and that any person
intending to acquire the right to the use of any water shall,
before commencing the ‘construction of any ditch or other
works, make application to the State Engineer for a permit
to make such appropriation; application of water to a bene-
ficial use prior to the passage of the act or under authority
of a riparian proprietor shall create in such riparian propri-
etor a vested right to the extent of the water beneficially
used; that since the passage of the act of 1909 the highest
court of Oregon,has decided that “a settler upon a non-
navigable stream has an election, either to rely upon his
right as a riparian proprietor or to make an appropriation
of the water, if it is subject to appropriation, and claim as
an appropriator’” and “the right of appropriation is incom-
patible with the rule of riparian proprietorship. The doctrine
of appropriation excludes the idea of equality and makes
each water right superior to all others subsequently initiated
ws
x
15
. while the characterizing feature of riparian ownership,
when applied to irrigation, is equality or, perhaps to speak
more exactly, the right of each person is correlated with the
right of every other person, although a riparian owner may
take all of the water in a stream if needed to satisfy do-
mestic wants;” that ever since such decision was made, the
rules there announced have been and are the law of Oregon;
that said act further provides that where any riparian
proprietor, at the date of the passage of the act, was engaged
in good faith in construction of works for the application
of water to beneficial use, the doctrine of relation may be
applied. Defendant denies that the Oregon lands to which
waters have been appropriated in recent years have been
non-riparian lands or lands which have lost their riparian
rights by failure to irrigate the same within a .easonable
' time. Defendant denies that a request has been made upon
Oregon for the equitable division of the waters of the River
_ or any division except a division dictated by the State of
Washington, and denies that Oregon has failed to recognize
the rights of the State of Washington and alleges that the
State of Oregon permits all and more water than that to
Which the State of Washington is entitled to flow across
the line between said two states without interference, but
that the State of Washington is permitting said water to be
wasted ; denies that uniess restrained by this honorable court,
the State of Oregon will continue to use or divert the water
of the Walla Walla River to which the citizers of the State
of Washington are entitled.
Oregon alleges that more than twenty years jefore
the commencement of this suit the courts of the State of
Oregon adjudicated and determined the rights of the Oregon
users, and that the rights so fixed have been continuously
since used and are valuable property rights that have become
, : i,
4 ‘ 7 ‘ 16
vested under the laws of Oregon and the United States;
that in the year 1888, 2250 inches of the water of said
stream, measured under a six-inch pressure, miner’s measure-
ment, were appropriated for power purposes, and in 1898,
500 additional inches so measured were appropriated for
power purposes, and that ‘other amounts of water were
appropriated from said stream at various times both before
and after said dates for power and irrigation uses, all of
which waters were diverted from the channel of the Walla
Walla River and from the Tum-a-lum River and used for
power and irrigation purposes in a direction northwesterly
from said point of diversion and that all of said waters were
diverted into the Little Walla Walla River and thereafter
flowed and still flow in a northwesterly direction away from
the main stream. The defendant further alleges that in the
early days the Tum-a-lum River carried the main flow of
the waters of the Walla Walla River, but that for about
forty years or more past said Tum-a-lum River has been
absolutely dry during the summer and irrigation season of
each year from a. point about four miles above the state
line to a point about two miles above said state line,
but that water reappears in said stream about two
miles above the state line in Oregon and flows therefrom
into Washington, and that from the point of reappearance of
said stream it is fed by many springs, seeps and marshes;
that the State of Oregon and its people diverted, appropriated
and used in good faith ‘under claim of right and color of
‘itle and pursuant to the laws cf the State of Oregon and the
recognized custom of appropriating water from streams in
said territorv, and applied to a beneficial use, from about
the year 1864 to 1895, water from said river and its trib-
utaries for the irrigation of 5,831 acres of land and about
4,000 miner’s inches measured under a six-inch pressure for
17
power purposes, and have since held and used said water
for said purpuscs and from 1892 to 1909, appropriated and
used water for the irrigation of 6712.73 acres, and from 1908
to 1921, appropriated and used water for the irrigation of
3,042.82 acres, and from 1927 to the present have appropri-
ated and used water for the irrigation of 1,573.78 acres;
said appropriators have taken, used, held and carried away
said waters from said stream openly, notoriously and ad-
versely to the State of Washington; that during the times
mentioned above, the State of Oregon and its people have
built dams, headgates, main and lateral ditches, leveled and
cultivated lands, planted orchards, vineyards, pastures,
lawns, meadows, alfalfa fields, ornamental and shade trees,
and built and established homes upon said lands, constructed
roads and highways, expended enormous sums of money,
and during all of said time the State of Washington and its
people had notice and knowledge of said developments and
that neither the State of Washington nor its people have
ever protested against the diversions, appropriations or
use of waters of said stream as enumerated, and are thereby
estopped from claiming or asserting any damages, or claim-
ing any right or interest in or to the waters of said stream
SO appropriated, or from inter fering with said appropriations
and diversions; that both states recognize by their statutes
and the decisions of their courts the same principles of Lay
as to adverse possession, laches, estoppel and limitation of
time within which real property may be recovered. Oregon
prays that the said suit may be dismissed.
Reply.
Washington by its reply admits the allegations of
Oregon’s answer to the effect that during the summer, or
irrigation season of the year, no water is dischar ved into
18
the Walla Walla River from the east or west branches of
the Crocket or from the Ford branch so far as the present
time is concerned, and aileges that by means of dams and
other controlling works, water has been in recent vears
diverted in the State of Oregon froin the main stream into
the Little Walla Walla River and into the various branches
thereof and other drainage channels and into. irrigation
ditches in that locaiity, and the water has thus been pre-
vented from returning to the main «hannel of the Walla
Walla River in the State of Washingiun above the principal
diversions of said Walla Walla River within the State of
Washington. , Washington denies the allegations on page 8
of Oregon’s an¥wer that 700 acres of land had been irrigated
in the State of Oregon prior to 1870 and alleges that the
amount so irrigated was approximately 70 acres. Washing-
ton denies that in 1892 there were under irrigation 5,831
acres of land in Umatilla County, Oregon, taking water
from the Walla Walia River, and alleges that said acreage
did not exceed 1200: Washington admits the construction of
a pipeline for a distance of 41% miles from the City of
Walla Walla for the carriage of sewage water, but d_nies
that any quantity of sewage water in excess of live cubic
feet per second was ever carried in such pipeline. The re-
ply admits that between 1919 anc 1926 an undefined acreage
has been placed under irrigation in the State of Washington,
but alleges that the larger portion of such lands were not
irrigated from the Walla Walla River or its Oregon tribu-
taries or from waters which could be used in the State of
Oregon, but that such lands were irrigated from the tribu-
taries of the Walla Walla River anc the Walla Walla River
within the State of Washington. It is further alleged that
in the vear 1926 only approximately 6,000 acres of Wash-
ington land received water from the Walla Walla River and
§
Yaa
PINE SLI ATR HR
19
its tributaries, during the summer irrigation season: that
the balance of the lands irrigated in the State oi Washing-
ton as set torth in the Oregon answer, (pages 17 and 18)
having rights of late priority, receive water only intermit-
tently during the winter and spring run-off. Replying to
the allegations of defendant on page 18 of its answer as to
the number of acres of land irrigated in Walla Walla County,
Washington, from the Walla Walla River and its trivutaries,
complainant alleges that of the lands so alleged by defendant
to be irrigated in said County, not to exceed 11,000 acres
are irrigated from the Walla Walla River cr its tributaries,
or from waters which are or can be used for irrigation in
the State of Oregon, and of those so irrigated a considerable
portion are irrigated only during the non-irrigating season,
when the waters would otherwise be wasted. It is alleged
that all of the water in the Walla Walla River at or below
the mouth of the Touchet River is return and seepage water
Which had been put to a beneficial use, and that no part
of said water can be used for irrigation of iands in the
State of Oregon or the State of Washington. Complainant
aimits that the amounts of water diverted from the Walla
Walla River and from the Tum-a-lum River for power and
irrigation purposes have been discharged into the Little
Walla Walla River as alleged on page 24 of defendant’s
answer, but the complainant denies that said waters so di-
verted flowed and still continued to flow away from the
main stream in a northwesterly direction from a point just
below the forks of the Tum-a-lum and Little Walla Walla
Rivers, and alleges that such waters have reached and unless
Wrongfully diverted will reach the main stream of ihe Walla
Walla River above the principal Washington diversions. It
is further admitted in the reply that during the last ten years
at short intervals the citizens of Oregon have diverted all
: Axia ie
20
of the waters of the Walla Walia River above the Tum-a-lum
section, the period of diversion varying according to the
season, but alleges that during the past forty years or more,
at no time has the whole supply of said section of the Walla
Walla River been diverted during the entire summer and
irrigation season.
The reply makes appropriate denial of all of the affir-
mative defensive matters set forth in the answer of the
State of Oregon except as qualified above.
STIPULATIONS.
The parties hereto, after the filing of the complaint,
the answer and the reply, entered into a series of stipula-
tions, eleven in number, which stipulations embody agree-
ments of the parties as to facts material to the issues in-
volved. These stipulations have very materially limited the
record in this case and have obviated the taking ot testi-
mony upon all issues as to which the parties were able,
after diligent effort, to come to an accord.
A summary of these stipulations ‘is as follows:
STIPULATION NO. 1
The lecrees of the courts of the states of Washington
and Oregon and the abstract of water permits of the State
Engineer of the State of Oregon and the abstract of water
permits issued by the State Supervisor of Hydraulics of
the State of Washington are admissible in evidence as tix-
ing the relative individual rights of the parties named
therein and their successors in interest to the use of water,
in the amounts, for the purposes and at the places oF on
the lands set forth in said respective permits and in said
respective decrees; with the provision that the admission
———___,,
of these decrees and permits shall not be construed as or
held to be an admission, waiver, abridgment or modifica-
tion of the rights of either state as against the other rela-
tive to the right claimed by the city of Walla Walla, Attalia
Irrigation District, Touchet River, Mud and Pine Creeks,
and that said stipulation shall not be a waiver of the claims
of the State of Oregon upon the ground of adverse use and
estoppel, and the distribution of water in Oregon as a sep-
arate stream system.
STIPULATION NO. 2.
Paragraph 1 of this stipulation is an agreed statement
as to the stream system in the two states and is as fol-
lows:
“The Walla Walla River rises in the western
slopes of the Blue Mountains in Northeastern Oregon.
Two branches, called the North Fork and the South
Fork, unite about four miles above the city of Milton.
From this point the river flows through a narrow
irrigated valley, approximately one-half mile wide,
until it reaches Milton, where the river divides in a
delta formation. The pipe line of the city of Milton
diverts water from the South Fork at a point in the
Southeast quarter of the Southeast quarter of Section
22, Twp. 5 North, Range 36 E. W. M., and furnishes
water for its power plant, which is located in the
Northwest quarter of the Southwest quarter of Sec-
tion 18, Twp. 5 North, Range 36 E. W. M. Couse
Creek, flowing from the west, enters the main stream
a short distance above the city of Milton and just
below the city’s hydroelectric power plant.
“The delta formation comprises lands in Sec-
tions 12, 1, 2 and 3, Twp. 5 North, Range 35 E. W.
M., and in Sections 34, 35, 36, 25, 26 and 27, Twp. 6
North, Range 35 E. W. M.
“The first division of the stream in this delta
formation is immediately below the bridge crossing
the river in the Southwest quarter of the Northeast
—————————eo™SSS——
_ Crocket, which unite in the Northeast quarter of
22
quarter of Section 12, Twp. 5 North, Range 35 E.
W. M. At this point the stream divides into the
Little Walla Walla and the Tumalum (as called in
Oregon) or Main Walla Walla (as called in Wash-
ington).
“The Little Walla Walla in turn, after flowing
a distance of about a mile, at a point in the North-
east quarter of Section 2, Twp. 5 North, Range 35
E. W. M. (called locally ‘the Frog’), divides into the
Ford Branch and the Crocket Branch. It is at this
point that the water is measured into the ditch of
the Milton, Freewater & Hudson Bay Irrigation
Company.
“The Crocket Branch, immediately below, di-
vides into the East and West branches of the Crocket,
and the West branch of the Crocket divides into three
prongs. The two easterly of these prongs join, about
a mile and a half below, the East branch of the
Crocket and discharge into the East Prong of the
Little Walla Walla Spring Branch, which in turn
empties into the East Little Walla Walla River across
the line in the State of Washington. The East Little
Walla Walla River discharges inio the main stream
near the Northeast corner of Section 10, Twp. 6
North, Range 35 E. W. M., in the State of Wash-
ington.
“The several prongs of the West branch of the
Section 26, Twp. 6 North, Range 35 E. W. M., with
the East branch of the Crocket to form the East
Prong of the Little Walla Walla River Spring Branch,
contribute little, if any, water to this Spring Branch
during the irrigation season.
“Beginning in Sections 23 and 24, Twp. 6 North,
Range 35 E. W. M., there are numerous springs which
supply the water during the irrigation season to this
East prong Spring branch, Ballou Spring Creek, Big
Spring Branch and Grandview Creek, which form the
East Little Walla Walla River in Washington.
“Lewis Spring Branch rises to the west of these
springs in the Southeast quarter of the Southwest
23
quarter of Section 23, Twp. 6 North, Range 35 E.
W. M., in the State of Oregon. Its waters are all
diverted for irrigation during the irrigation season.
The natural drainage of the lands watered from the
Lewis Spring Branch is toward the Northwest. These
waters come to the surface in a spring arising just
across the line in the State of Washington. This
spring forms the beginning of Walsh Creek in that
state.
“The Westerly prong of the West branch of the
Crocket unites with the Ford branch at a point in
Section 22, Twp. 6 North, Range 35 E. W. M., to
form the West prong of the Little Walla Walla, which
crosses the line into the State of Washington, where
it is known as the West Little Walla Walla River.
The West Little Walla Walla River empties into the
main stream in Section 31, Twp. 7 North, Range 35
E. W. M., in the State of Washington, below the
intake of the canal of the Gardena Project.
“The Westerly prong of the West branch of the
Crocket unites with the Ford branch in Section 22,
Twp. 6 North, Range 35 E. W. M., to form the West
prong of the Little Walla Walla. These two branches,
however, furnish little, if any, water to the West
prong during the irrigation season. Springs in and
near the channel of the West prong constitute sub-
stantially its only supply of water during the irri-
gation season.
“West of the center line of Sections 22 and 27,
Township 6 North, Range 35 E. W. M., rises the
East branch of Mud Creek and the Middle branch of
Mud Creek, which unite to form Mud Creek in Wash-
ington, which flows into the Walla Walla River in
Section 36, Twp. 7 North, Range 33 E. W. M.
“Further west is South Mud Creek, Schwartz
Spring Branch and Dry Creek, which are tributaries
of Pine Creek. South Mud Creek crosses the State
Line North of Section 15, Twp. 6 North, Range 34
E. W. M., and flows westerly in the State of Wash-
ington about a quarter of a mile from the State Line
to Pine Creek. It is known as Little Mud Creek in
a
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24
Tar ) 6A
the State of Washington. Pine Creek enters the main
stream in Section 2, Twp. 6 North, Range 33 E. W.
M., below all the diversions on the main stream in-
volved in these proceedings. Johnson Creek, Goodman >
Spring branch and Dugger Creek are spring branches
in Oregon in the water shed of Pine Creek, but have
no surface channel -connection therewith.
“Birch Creek rises in the State of Oregon and
flows Northwesterly and westerly not far from the
State Line, until a short distance from’ the main
stream, where it turns northerly, crosses the line,
and enters the main stream in Section 13, Twp. 6°
North, Range 35 E. W. M., in the State of Wash-
ington just North of the State Line. ;
“Shortly after passing the line. into the State of
Washington, the main stream turns and flows through
wide valleys in a westerly direction a distance of ap-
proximately thirty miles, where it empties. into the
Columbia River, near Wallula.
“The principal tributary of the main stream in
the State of Washington is Mill Creek, which also
rises in the Blue Mountains in the State of Oregon.
None of the waters of the water shed of this tribu-
tary reaches the main stream in the State of Oregon.
Approximately twelve miles above the confluence of
Mill Creek with the Walla Walla River, the tributar)
divides, one branch forming Yellowhawk Creek. Yel- -
lowhawk Creek, in turn, divides, one branch forming
Garrison Creek. The courses of Yellowhawk Creek
and Garrison Creek diverge for a ways, then run
nearly parallel in’ a southwesterly direction to the
main stream, Garrison Creek entering the main
_stream in the Northeast quarter of the Southeast
quarter of Section 4, Twp. 6 North, Range 35 E. W.
M., and Yellowhawk Creek entering the same in the
Northeast quarter of the Northwest quarter of Sec-
tion 11, Twp. 6 North, Range 35 E. W. M. The
intake of the Gardena Project is located on the mail
stream between the two points.
“Garrison Creek has no tributaries, ‘except 4
few inconsequential spring branches.
25
“Cottonwood Creek, Russel Creek and | Lasater
_ Spring Branch are tributaries of Yellowhawk; the
lower of these tributaries entering the same about
one mile and a half above its mouth. Reser Creek
in turn is a tributary of Russell Creek. About a mile
and a half above the Yellowhawk division, Mill Creek
divides, one branch being Titus Creek, which paral-
lels and then: unites with Mil’ Creek about a mile
below the Yellowhawk division. Mill Creek runs
through the City of.Walla Walla and enters the main
stream near the Whitman Mission, in Section 31,
Twp. 7 North, Range 35 E. W. M. r
“At the point of the Yellowhawk division of Mill
Creek, controlling works have been constructed and
the waters of Mill Creek are apportioned between the
two streams in accordance with the priorities of the
rights of persons entitled to water from the two
streams, except rights in. lower Mill Creek, below
the Southeast quarter of the South east quarter of
Section 23, Twp. 7 North, Range 35 E. W. M., which
for practical purposes are administered independent
of the rights on the upper -portion of the stream.
~~ wee
’ above that point.
“Stone Creek is a tributary of the main stream,
entering the same below Yellowhawk i1 the South-
west quarter of Section 3, Twp. 6 Nortn, Range 35
E. W. M., and below the intake of the’ canal of the
Gardena Project. Doan Creek is a tributary ‘of
lower Mill Creek and enters the same in the North-
_ . West quarter of the Northwest quarter of Section 32;
Twp. 7 North, Range 35 E. W. M. The Touchet
River is a tributary of the main stream, entering
the same in Section 4, Twp. 6 North, Range 33 E. W.
M. McEvoy Spring Branch enters the main stream
in the Southwest quarter of Section 3, Twp. 6 North,
Range 35 E. W. M., above the intake of the canal of
the Gardena Project. There are other spring branches
entering the stream which are two inconsequential
to mention specifically. Yellowhawk Creek, East Lit-
tle Walla Walla River; McEvoy Spring Branch and
Birch Creek are the only tributaries entering the
PR ee ee ee ae eS ee
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Abt PTE Sid
NAR mor eb ERD # rans
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26
main stream in the State of Washington above the
intake of the canal of the Gardena Project.”
Paragraph 2 is a limitation of ihe issues as to the City
of Walla Walla, Attalia Irrigatibn District, Touchet River,
Mud and Pine Creeks, and effectually eliminates these speci-
fied rights and tributaries from further consideration by the -
court.
STIPULATION NO. 3.
Stipulation No. 3 is an agreed statement as to (1) land
forms, drainage and climate; (2) irrigation practices;
(3) crop production ; (4) community development; (5) pop-
ulation, farm acreage and assessed values, priorities and
approximate acreage. It is not deemed advisable to in any
way abbreviate or abstract this stipulation. It is therefore
set forth in full: ; ;
“cc 1.
LAND FORMS, DRAINAGE AND CLIMATE
(Based largely on the report of A. M. Piper)
“The Walla Walla Basin is part of a plateau
extending from the Columbia River to the Blue Moun-
tains. The western edge of the adjacent Blue Moun-
tain section is about 10 miles East of the city of
Walla Walla. This plateau has moderate relief, rang-
ing from 1900 feet elevation along the flank of the
Blue Mountains to 400 feet in the river bottoms at
the Western edge of the area. The only extensive
flat areas are-the flood plains and terraces developed
by the larger streams. For the most part, the upland
areas comprise sub-parallel ridges tending North. 20
degrees East, separated by V-shaped valleys which -
commonly are 50 to 300 feet deep. These ridges
and slopes have a deep fertile soil. The Walla Walla
ee
27
Valley is rudely triangular, and from apices in the
canyons of Mill Creek and the Walla Walla River,
converges westward to the head of the gorge which
begins 20 miles to the West. Near Whitman, where
the Walla Walla River and Mill Creek join, the
valley is ten miles wide. At Touchet it is about four
miles in width. The valley comprises three distinct
physiographic divisions. In order of decreasing age,
these are: the Gardena terrace, whose remants in
places are as much as 120 feet above the flood
plains of the river; the Low terrace, whose rem-
_ nants parrallel the flood plains and are commonly
less than 20 feet above them; and finally the alluvial
fans of the Walla Walla River and of Mill Creek
and the flood plains of the river and its tributaries.
“The Gardena terrace is now thoroughly dis-
sected, and is represented by numerous remants,
which range in size from flats 18 miles in length
to hillocks 100 yards across. The most prominent
remant lies south of the Walla Walla River, in the
Western part of the area upon which is situated
the Gardena irrigated district, from which this land
form is named. This remnant in places stands 120
feet above the flood plain of the river, southeast of
Touchet, and 40 feet above the flood plain of Dry
Creek in Oregon, 10 miles to the East. The remnant
flanks the Southern wall of the valley for a dis-
tance of 12 miles. The larger remnant of the Gar-
dena terrace lies North of Walla Walla. In the
central plain of the basin the terrace has been
thoroughly dissected by the several distributaries of
the Walla Walla River and Mill Creek, which have
left long narrow remnants. In general the gradient
of the Gardena terrace is slightly less than that of
the adjacent flood plain. Remnants in the flood plain
of the area are 100 to 120 feet above the flood plain,
and slope westward less than 20 feet to the mile.
Those in the Eastern part of the area stand only
10 to 25 feet above the fans of the Walla Walla and
Mill Creek and decline westerly 60 to 75 feet in a
mile.
of ~
hig SE Pe
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a ae ale
LEAR AB PRES, ISAT PS
.
ae as 4 ‘ 2
ps Sar Tei aS i VERY A TIS ei CIE OE LB s vr
28
“The Low terrace is inconspicuous and is repre-
sented by remants less than one mile wide and as
much as 8 miles long, and which border the flood
plains. Remnants of the Low terrace are readily dis-
cernible in the Western part of the area, where they
are 5 to 20 feet above the flood plain. Upstream
they become lower and less discernible and commonly
merge into the flood plain without any topographical
break.
“The alluvial fan of the Walla Walla River
slopes North from an apex at the mouth of the
rock-walled canyon at Milton, and is about 4 miles
long and 4 miles wide along the outer margin. At
its apex the fan is about 1070 feet above sea level.
From this altitude it descends about 50 feet to the
mile and stands about 850 feet above sea level at
its outer margin. This feature is delimited to the
North and West by the upstream ends of the several
remnants of the Gardena and Low Terraces. The
Walla Walla River, commonly called the Tumalum,
follows its East margin. Below the fan the Walla
Walla River and its several distributaries have de-
veloped flood plains which generally are less than
0.5 miles wide and which are separated or bordered
by long narrow remnants of the Low terrace or by
higher remnants of the Gardena terrace. The allu-
vial fan of Mill Creek is less prominent than the fan
of the Walla Walla at Milton. This fan originates at
an apex about 2 miles east of Walla Walla and is
roughly relimited by Yellowhawk Creek on the South,
by the main channel of Mill Creek on the North, and
by several narrow remnants of the Gardena terrace
on the West. The maximum width of one and a half
miles is attained at Walla Walla. Both above and
below the fan, the flood plain of Mill Creek aver
ages 0.5 miles wide. The gradient of the Walla Walla
River decreases progressively downstream. At the
jvnetion of the canyons of the North and South forks
‘t is about 80 feet in a mile. Across the fan North
of Milton the average s!ope is about 60 feet in a mile.
At Whitman, in the central part of the valley, the
itunes
29
slupe is 40 feet to the mile, and further downstream,
between Touchet and the head of the gorge, it be-
comes less than 10 feet to the mile. The Walla Walla
River drains about 150 square miles above Milton,
its drainage area being moderately rugged and mod-
erately high in altitude. Little rain falls on the drain-
age area in the summer, and a large part of the pre-
cipitation in the winter is snow. Under these condi-
tions, the stream is subject to an annual spring
freshet and is flashy throughout the year.
“The gradient of Mill Creek is about 100 feet to
the mile at the mouth of the canyon, 65 feet to the
mile at Walla Walla, and 50 feet to the mile near
Whitman, which is just above its junction with the
Walla Walla River. ‘
“The Walla Walla Basin has a semi-arid climate,
with warm dry summers and cold wet winters. The
mean temperature in the warmest month, which is
generally July, is 73.9 deg. F. at Milton, 76.5 deg. F. at
Walla Walla, and 72.8 deg. F. at Lowden. In the
coldest month, which generally is January, it is 31
deg. F. at Milton, 30.9 deg. F. at Walla Walla, and
29.1 deg. F. at Lowden. The meen annual tempera-
ture is 52.6 deg. F. at Milton, 53.9 deg. F. at Walla
Walla, and 51.3 deg. F. at Lowden. During the past
ten years, the highest recorded temperature was 107
deg. §. and the lowest was —15 deg. F. During the
same period, the latest killing frost in the spring has
ranged from March 9th to May 9th and the earliest
killing frost in the autumn from September 2l1st to
November 12th. The average growing season or
frost-free period, is 193 days. The average annual
rainfall at Milton, during the 11 year period 1922-
1932, was 12.99 inches, of which 1.54 inches fell
during the three summer months, July, August and
September. The average annual fainfall at Walla
Walla during that period was 14.37 inches, of which
1.64 inches fell during the three summer months.
The average annual rainfall at Lowden, during the
Same period, was 9.52 inches, of which 1.25 inches
fell during the three summer months.
-t
an
30 .
Il.
IRRIGATION PRACTICES.
“The growing season in the Walla Walla Basin
extends from April to October, inclusive. Irrigation
during this growing season is called herein summer
irrigation, and irrigation during any other part of
the year is herein called winter irrigation. Winter ir-
rigation is practiced on the lands served by the Milton,
Freewater & Hudson Bay Irrigation Company, and
on some of the lands of the Gardena project. The
balance of the Walla Walla Basin is served by sum-
mer irrigation. In ali cases where the water supply is
not sufficient to supply water during the entire grow-
ing season, the practice is to store water in the soil,
where possible, by irrigation prior to the growing
season and whenever water is available. In the sum-
mer irrigation of orchards, alfalfa and grain, out-
side of the gravelly soil, the practice is to apply
water about once every two weeks. In areas of grav-
elly land, the practice is to apply water to such crops
once a week. In the gravelly soil in and around Mil-
ton and Freewater, for strawberries, tomatoes, garden
vegetables and short-rooted crops, ihe practice is
apply water two to three times a week. Where the
application is made several times a week, the period
of application is from two to four hours each time.
Where it is once a week, the time of application is
from eight to twelve hours. Where application is
made at longer intervals, the length of time depends
upon the amount of acreage, and in most cases a
continuous flow to each irrigator is used. The flood-
ing method of irrigation is not practiced. Nearly
all the irrigation is by what is known as the corru-
gation method.
“It is the general practice in the orchards to
grow cover crops of clover, alfalfa and the like, as
a protection against evaporation. These crops are
usually chopped into the soil as fertilizer.
“Controlling works are found at the principal
points of diversion from the stream. Weirs for meas
31
uring individual rights are in general use through-
out the valley.
“Rotation is practiced to a considerable extent.
In Oregon, in the deep soiis, the rotation period is
from one ti, two weeks for alfalfa and grain. In the
gravel soils, for orchards and alfalfa, the average
irrigated acreage for a group of rotaters is about
60 acres, and rotation is practiced on a weekly basis.
Where the gravel soil about Milton and Freewater
is cultivated to strawberries, tomatoes, vegetables and
short rooted crops, the average irrigated acreage for
a group of rotaters for such crops is from 10 to 20
acres and rotation is practiced on both a twice a
week and a thrice a week basis. Rotation under the
Oregon decree may be enforced by the water master,
and in some instances is carried out by agreement
of the parties. In Washington, rotation is practiced
under all ditches operated by irrigation districts, and
in the vicinity of Walla Walla, by private arrange-
ment between the individual water users. The period
of rotation varies greatly, but averages, it is esti-
mated, about ten days.
“In some instances there is a run-off from the
irrigated lands, caused by the use of a large head of
water. This run-off, locally called waste water, is
utilized on succeeding tracts.
“In the section around Milton and Freewater,
there are approximately 300 wells which pump water
from the lower gravel strata and apply it to irriga-
tion. In Washington there is little irrigation from
wells.
III.
CROP PRODUCTION.
“Oregon. In Oregon the crops consist of wheat,
alfalfa, hay, prunes, apples, cherries, tomatoes, ber-
ries, vegetables and nursery stock. In the irrig.:ted
section there are from 3000 to 4000 acres of prunes,
yielding about 6 tons to the acre; from 1000 to 1800
acres of apples, yielding about 8 tons to the acre;
200 to 300 acres of cherries, yielding about 4 tons to
the acre; about 200 acres of tomatoes, yielding 10
tons to the acre. (The acreage of tomatoes has been
cut down this year from past years, in accordance
with the general policy of cutting the amount of pro-
duction. Last year the acreage was about 300 acres.)
There are about 125 acres of berries, yielding about
a ton to the acre. Nursery stock of about 175 acres
supplies about 40 carloads per year, besides the local
market. Alfalfa hay is raised on from 2000 to 2500
acres of land, and yields from & to 7 tons per acre,
depending on the length of time that water is avail-
able for irrigation. In this district there are approxi-
mately 2500 dairy cattle, exclusive of those kept for
family purposes only. In the line of vegetables,
squash, melons, potatoes and other varieties yield in
proportion to the tomatoes. There has also developed
a considerable flower trade. A number of growers
specialize in peonies, supplying the trade not only
with peony blooms but with the plants.
“Washington. The crops of the valley in Wash-
ington consist principally of alfalfa, wheat, vegetables
and fruits. It is estimated that 40,000 tons of alfalfa
are raised in this area annually. The average acreage
yield is 6 tons. Wheat on irrigated land is generally
raised as part of the rotation between alfalfa plant-
ings. It is estimated that 1000 acres of wheat are
irrigated in this area annually. The average acreage
yield is 50 bushels. Crops of vegetables are grown
quite extensively. The average annual vield of the
following varieties is: Head lettuce, 49 cars; cab-
bage, 16 cars; rhubarb, 35 cars; onions, 300 cars;
spinach, 100 cars; tomatoes, 30 cars; cantaloupes, 46
cars; potatoes, 307 cars; mixed vegetables, 84 cars.
The average acre yield of the following varieties is:
Asparagus, 500 boxes to the acre; spinach, 500 boxes
per acre; onions, 600 sacks per acre; potatoes, 200
sacks per acre. Fruits are also grown in this area.
In 1932, 125 cars of apples and 302 cars of prunes
V7"_
33
were estimated to have been shipped out of Walla
Walla. Apples in this territory yield from 5 to 10
boxes per tree. Prunes yield as high as 600 boxes to
the acre. The sweet varieties of cherries are grown,
yielding as high as 100 pounds to the tree. It is es-
timate that 145 tons of cherries were raised in 1929.
Peaches and pears are grown successfully, princi-
pally for the local market. 16 tons of peaches were
raised in 1929. An average of 10 cars of grapes are
shipped from Walla Walla annually. Strawberries
yield as high as 600 crates to the acre. Approxi-
mately 100 acres in this area are devoted to berry
culture. It is estimated that there are 4000 milk cows
on the farms in this area. Two and three-quarters
million gallons of milk were produced in 1929. Poul-
try is also raised extensively. 7500 turkeys, 1600
ducks and 1000 geese were estimated to have been
raised in this area in 1929. $47,000.00 was also rea-
lized from the sale of chickens in that year.
IV.
DEVELOPMENT OF COMMUNITY.
“Oregon. The Oregon community supports a
flour mill, a sawmill and box factory, cider works, a
dehydrating plant and a vinegar plant, in addition to
a number of commission houses and fruit and vege-
table distributors. In order to handle the fruit and
vegetable crops, five cold storage houses have been
erected and are operated by the various companies.
“The district contains ten grade schools, having
a total of about 1000 pupils, and a splendid Union
High school. There are about ten churches. This
Property, together with the municipal buildings of
the two towns, represents a value of about half a
million dollars.
“Washingion. In the city of Walla Walla there
are 66 manufacturing plants, including four flour and
feed mills, a meat packing house, a cannery, special-
i
34
izing in vegetable canning, three creameries, an iron
products foundry, two sash and docr factories, a con-
crete pipe and conduit plant, and other small manu-
facturing enterprises. The annual value of the prod-
ucts of these industries is $6,279,166.00.
“The city of Walla Walla supports a high school,
six grade schools, three parochial schools, three music
schools and two colleges, with an aggregate average
annual attendance of 5300 students. Thefe are twen-
ty-four churcues, representing all principal denomi-
nations, four theatres and three hospitals. Grade
schools and churches exist and are wel: distributed
outside the city in this area.
V.
POPULATION, FARM ACREAGE AND ASSESSED
VALUATION.
“The territory herein considered excludes all
that part of the river basin which by stipulation has
been heretofore removed from any issue in the case.
“Oregon. The related territory in Oregon, ex-
cluding the Hudson Bay lands, has a population, ac-
cording to the 1930; census, of 4772, of which 2308
is urban, being the cities of Milton and Freewater,
and 2464 is rural. In addition, the Hudson Bay lands
are occupied by about 65 families, which would raise
the total population of the district to about 5000.
“The irrigated lands are farmed intensively. The
6233.87 acres irrigated from the Walla Walla River,
spring branches and East Prong of the Walla Walla,
are divided in 889 farms, with an average acreage
of 7.01 acres. The West Prong and Lewis Spring
Branch have 618.74 acres, divided into 36 farms with
an average acreage of 17.19. The Pleasantview Ditch
Company irrigates 1249.18 acres, divided into 62
farms with an average acreage of 20.15. The Milton,
Freewater & Hudson Bay Irrigation Company irri-
gates 2675.41 acres, divided into 57 farms, with an
35
average acreage of 47 acres. This makes a_ total
acreage in the related area of 10,777.20, divided inio
1044 farms, or an average acreage of 10.32 acres.
“This acreage has an assessed valuation, on the
1932 roll, exclusive of the Hudson Bay acreage, of
$1,543,120.00. The Beauchamp land, of 86.67 acres,
irrigated under the Hudson Bay, is assessed at $11,-
810.00, and the Markham land, 200 acres, is assessed
at $21,560.00. Based upon these assessments, it is
estimated that the assessed value of the Hudson Bay
lands is substantially $250,000.00. The assessed valu-
ation of the cities of Milton and Freewater is $915,-
975.00. This makes a total assessed valuation of the
related district of 52,709,095.00. The assessed valua-
tion is usually counted as averaging about fiity per
cent of the actual value.
“Washington. The related territory in Washing-
ton, outside the incorporated towns, has a population
of 7090, according to the 1930 U. S. census. The
population of the city of Walla Walla, according to
the same authority, is 15,976. There are 9615 acres
of irrigated land in the vicinity of Walla Walla. The
size of the farming units in this area varies from 1
to 500 acres. The average is 17 acres. In the vicinity
of Lowden there are 3231 acres, ranging in size of
unit from 2 to 160 acres with an average of 38 acres.
In the Gardena district, the smallest unit is 4 acres,
the largest 200 acres, and the average 70 acres.
“The above described acreage in the vicinity of
Walla Walla has an aggregate assessed valuation, on
the 1932 tax roll, of general taxes, of $3,845,942.00.
The assessed valuation of lands in the city of Walla
Walla for the same year is $8,137,409.00. In the
vicinity of Lowden, lands were assessed for the same
year at $225,670.00, and in the Gardena District, at
$234,663.00. The total aggregate assessed valuation
of the land in the reiated area is $12,443,684.00. Un-
der the law in the State of Washington, lands are
assessed for taxation purposes at fifty per cent of
their actual value.
ETA ee
ae a tas a
eS ne ee ee ere
4
Bence nde
Year
1859
1861
1862
1863
1864
1865
1866
1867
1868
1869
1870
1871
1872
1873
1874
1875
1876
1877
1878
1879
1880
1881
1882
1883
1884
1885
36 ;
“PRIORITIES AND APPROXIMATE ACREAGES,
AS SHOWN BY DECREES AND PERMITS.
“The following tabulation shows the approxi-
mate acreage under each year’s date of priority, as
shown by the several decrees of the two states, for
the related area, excluding all that part of the river
basin which by stipulation has been heretofore re-
moved from any issue in the case, and including the
Cardena appropriation, the priority of which is con-,
tested by Oregon.
|
OREGON WASHINGTON
Walla Walla West Pg.
Walla West Pg. Walla . Tribu- (Little
River Waste inOregon River | taries W. W. R.)
37.15
314.00
35.84
83.50
28.22 , 81.61
37.12 124.23
3.30 137.13
8.24
60.28 89.90
4.18 44.45
47.31 — 160.00 8.583
11.06
55.78 79.75
65.50 13.00
25.26
291.47 20.40
72.90 15.00 . 1.32
87.73 | 12.00
81.74 54.77
31.55
180.17 43.80 . 25.20
123.46 7.50 51.50
86.90 91.00
55.09 13.00 61.73
16.50 , 125.00 149.48
135.35 14.00 94.88
Year
1886
1887
1888
11889
1890
1891
1892
1893
1894
1895
_ 1896
1897
1898
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916
1917
1918
1919
1920
1921
1922
OREGON
Walla
~ Walla
River
54.51
217.76
93.38
65.86
113.72
131.49
264.05
157.54
102.12
242.07
30.72
128.31
44.37
7.06
198.99
87.69
165.90
2725.04
23.02
136.35
40.06
80.99
193.82
316.71
33.25
962.14
392.25
14.00
97.00
28.80
59.00
28.00
59.00
27.50
12.00
140.00
Waste
10.00
10.00
_ 49.90
33.90
15.30
8.70
12.80
8.75
38.84
8.00
15.00 ©
113.00
|
WASHINGTON
Walla
West Pg. Walla
9.25
32.00
. InOregon River
32.00
$221.11
431.96
180.79
40.00
330.00
50.00
15.00
5.00
50.00
Tribu-
taries
~ 141.35
30.50
98.91
48.50
178.67
647.63.
18.00
477.97
246.75
141.25
160.00
6.50
99.33
105.45
38.00
147.06
884.58
25.05
123.75
153.15
202.55
42.00
32.28
50.00
371.00
33.19
138.50
63.10
9.40
63.28
49.90
29.00
61.74
75.52
3.60 .
West Pg.
(Little
W. W.R.)
20.00
462.90
29.00
187.70
65.00
1.00
52.00
10.90 —
106.00
33.00
. 21.00
35.00
32.00
BERT ESI TINCT LT RIE PEDO INNO ET ALPS SS "ALIN tare Sart ri
OREGON WASHINGTON
Walla Walla West Pg.
Walla West Pg. - Walla Tribu- (Little
Year River Waste in Oregon River . taries W.W.R.)
1923 140.00 37.00 . 11.00
1924 91.00 5.00 35.00 | 6.00
1925 41.00 25.00 0.50
1926 3.00 - 10.00 880.00 1419.80 49.00
1927 90.40 15.00 .
1928 281.15 25.00
1929 30.00 “ 7.50
1930 © 44.80
1931 1.00
STIPULATION NO. 4
This stipuiation qualifies for admission as evidence (1)
Youngs’ soil map, (Washington Exhibit 15); (2) report of
A. M. Piper and others on ground water, (Washington Ex-
hibit 16); (3) Map of lands involved in the adjudication of ~
rights in the Walla Walla River showing Walla Walla River
tributaries and diversions, (Washington Exhibit 17); (4)
state constitutions and statutes in argument or by reference.
STIPULATION NO. 5
‘ This stipulation embodies such facts. relative to the
history and rights of the Gardena Farms District as the
parties were able to agree upon. It sets forth that the
diversion by the Gardena Farms_ District, formerly the
Walla Walla Irrigation Company, is the largest diversion
from the Walla Walla River in the State of Washington -
and fixes the point of this diversion and the course of the
canal. By decree of the Superior Court of the State of
Washington for Walla Walla County, the Waila Walla Irriga-
tion Company was given a priority of 1892 with the right
39
to irrigate 7,000 acres of land with a maximum amount of
93.333 ¢.f.s. of water from April 1st to July 1st, and 70
c.f.s. of water from July 1st to October 1st, subject to the
ivllowing limitation:
“That claimant’s 5,000 acres of land, which was
the amount irrigated at the time of the hearing of
the claim of said Walla Walla Irrigation Company
before the referee, to wit, on the 29th day of March,
1926, is entitled to use of water to the extent of
66.67 cu. ft. per second from April 1st to July Ist,
50 cu. ft. per second from July 1st to October 1st,
and 1 cu. ft. per second for each 50 acres of land
for winter irrigation; provided, that from and after
said 29th day of March, 1926, the remaining lands
susceptible to irrigation which may in the future
be developed, shall be entitled to a quantity of water
for irrigation at the rate herein allotted, as said
lands may be brought into cultivation from time to
time until a maximum of 7,000 acres are developed
and the maximum of water herein awarded is used;
and that the amount of land to which this claimant
is entitled to water under the above provision shall
be determined at the beginning of the spring irriga-
tion season each year, by the State Supervisor of
Hydraulics.”
The certificate of water right following upon the de-
Cree is attached to the stipulation and marked Exhibit “A.”
In 1928 the Gardena Farms District succeeded to the rights
of the Walla Walla Irrigation Company. In the beginning
J. F. Boyer, J. T. Kirk and W. F. Courtnay caused preliminary
- Surveys to be made and a canal route to be located. Several
notices of appropriation were posted at the proposed point
of diversion and recorded in the proper office for the re-
cordation of such notices. No diversion was ever made from
the Little Walla Walla River.
Sasa ree ee
e.
i
RIK ETAL SAT NNER eae Stig
Te he is
40
The stipulation then proceeds:
“In the spring of 1892, E. C. Burlingame, a con-
tractor, became interested in the project and made
further surveys and investigations of the route of
the canal, and thereafter acquired an interest therein.
“Soon thereafter in the same year a corporation
was formed, known as the Walla Walla Irrigation
Company. On November 5, 1892, formal conveyances
of the rights of the individual appropriators were
q made to the Company, by deed recorded January 24,
: 1893, in Book 53, at page 179, Deed Records of
Walla Walla County, Washington.
“Mr. Burlingame performed the construction
4 work for the Company using his own equipment and
teams up to the time of the formation of the irriga-
tion district which succeeded to the rights of the
Company in 1928.
“In August, 1892, actual construction work on
the canal was begun.
“Prior to the year 1905 the canal was constructed
from the diversion point in the McBean donation
land claim in the SW14, SW, Section 3, Twp. 6
North Range 35 E. W. M. along the route of the
canal as shown on the official map herein, to a point
in Lot 3 of Fractional Section 13, Twp. 6 North
Range 34 E. W. M. where the map indicates that the
canal divides. From said divisional point one division
of the canal was constructed in a Southwesterly direc-
tion into the State of Oregon, and also from said
2 divisional point, prior to the year 1905, one division
3 was constructed in Northwesterly direction along the
: route indicated on the map to a point in Sectioa
: 5, Twp. 6 North Range 34 E. W. M. About a mile
‘ from the upper end of the syphon.
“In the winter and spring of the year 1905 an
inverted syphon was constructed from a point in
the SW14, of the NW14, of said Section 5, to a point
in the NE1, SE}, of Section 12, Twp. 6 North Range
33 E. W. M. from which point the distribution system
for the irrigation of the lands West and South of
J DE rt LENS He et
Aes adrnaaxt) ~~. - -.
© 4 lees ELA A AARON, 0 kN Se
41
the syphon was constructed and has been extended
as the demands of irrigation required. This syphon
has a head of 145 feet, carries the water of the canal
across the valley of Pine Creek a mile and a half in
width, ard is built of wood Staves and steel bands.
It was originally of a diameter of 38 inches and
has since been replaced by Gardena Farms District
by one 44 inches in diameter.
“For the first three miles of the course of the
canal from the river the soi] conditions presented
no serious difficulties in construction. From there
to the head of the syphon the course of the canal was
in light and ashy soil requiring the canal to be pud-
dled and causing some breaks and slides. The exca-
vation and filling was done with teams and scrapers.
“As a part of this construction work there were
cuts two of which were approximately 26 feet in
depth at their deepest point, one about 1500 feet and
the other about 1000 feet, in length. Some fills also
had to be made. The canal was constructed 16 feet
on the bottom from the diversion point to the division
of the canal at the point in Lot 3 of Fractional Sec-
tion 13, Twp. 6 North Range 34 E. W. M. and from
that point to the head of the syphon is now 10 feet
on the bottom, all with Side slopes of 1% to 1 and
with a depth of about 6 feet. The canal has a fall
of .5 of a foot to a 1000 feet and a capacity of 150
¢. f. s. in that portion with 16 inches bottom.
There is then set forth the structures along the canal
and the devices installed for the purpose of water use. The
expenditures upon the canal from 1901 to 1925 are set forth
a8 $227,078.56, which expenditures are segregated as to
their nature and as to the years in which they were made
in an exhibit attached to the stipulation.
In the year 1910 the company entered into arrange-
ments to receive sewage water from the City of Walla Walla.
The stioulatio,, provides:
\
—
Ska OD IN, TO Raa NPE.
42
“In the year 1910 the Company entered into
arrangements to receive sewage water from the City
of Walla Walla and during the years 1910, 1911
and 1912 expended $49,253.92 for concrete sewer |
pipe, $3954.02 for construction work, $1471.64 for
engineering, and $1771.60 for rights of way, for the
purpose of conveying such sewage water to the Com-
pany’s canals. This water was used until the year
1924 when such use was discontinued and the works
abandoned, with the exception of a small part of the
concrete pipe used for a spillway: from the canal.
From about 1920 to 1924 the Company contracts for
the sale of water contained the following clause: ‘It
is understood that sewage water from the City of
Walla Walla is part of said water supply.’
“In the year 1907 the Company expended $798.00
in investigation of reservoir sites. No reservoir has
been secured. The Company also expended for the
drilling of wells the following sums: In 1905, $240.-
50; in 1909 $6155.50; and from 1910 to 1913 the
sum of $441.25, and in 1924 and 1925 the sum of
$3149.08, making a total of $9980.33 expended for
work in an attempt to develop an additional water
supply from wells, which was without result.
“Water was first diverted from the river into
the canal in the year 1893 for puddling purposes
and turned out through the spillway into the West
Little Walla Walla River. In the year 1898 water
was first used for irrigation when 68 acres along the
line of the canal were irrigated. In 1899, 20 ad-
ditional acres were irrigated but these latter men-
tioned lands have since been abandoned. In 1901,
280 acres were irrigated in Oregon from the canal
running from the divisional point in Lot 3 of Frac
tional Section 13, Twp. 6 North Range 34 E. W. M.
into Oregon, and between 1901 and 1918, 72 addi-
tional acres in Oregon were irrigated from the canal,
but the irrigation of these lands was discontinued in
1919, when the Company abandoned the operation of
this canal. These lands are now irrigated from the
43
Milton-Freewater and Hudson Bay ditch. In 1898,
68 acres were watered from the canal; in 1899 20
acres additional were watered in Washington, which
were later abandoned.
“In 1904, 193 acres were watered from the canal
in Washington, including the 20 acres above men-
tioned as later abandoned. Approximately 1133.4
acres East of the syphon in Washington are now
irrigated from the canal. The balance of the lands
irrigated from the canal lie West and South of the
syphon. Water was first run through the syphon
in 1905 and used for irrigation.”
There is then set forth by years the amount of irriga-
tion company stock sold and the names of the individuals
to whom said stock was sold. This tabulation shows that
from 1898 to 1930 there was a continuous sale of the stock
of the company which water shares so sold provide in total
for the irrigation of 5793.09 acres, of which 372 acres have
been abandoned, leaving water stock outstanding for the
irrigation of 5421.09 acres, of which 216.56 acres are not
now being irrigated. A survey by Oregon indicates that in
1933 there were ivrigated from the system 4530.2 acres in
Washington and 721.3 acres in Oregon, or a total of 5251.5
acres.
The soil west of the siphon is rich and with irrigation
Produces abundant crops. Approximately 85 families live
on the land served by this irrigation system. West of the
siphon is a church and a school employing two teachers.
STIPULATION NO. 6
Stipulation No. 6 is merely a statement of the conten-
tions of the parties as to the Gardena right.
ate eile i
RO SS eT ee ne
BMRA
STIPULATION NO. 7
_ Stipulation No. 7 is a statement of the parties as to
their respective contentions as to water requirements upon
the lands to which water has been awarded under the de-
crees of the courts and by the water administrators of the
two states. It contains no statements of agreed fact.
STIPULATION NO. 8
This stipulation provides that the findings and orders
of determination of the State Water Board or State Engineer
of the State of Oregon, and the findings and reports of the
Referee of the State of Washington, filed in the cases in
which decrees are admitted in evidence, may be admitted
in evidence as a part of the respective decrees.
STIPULATION NO. 9
This stipulation sets forth the contentions of the parties
as to the wells from which water is used within the State
of Oregon.
The State of Washington denies the right of the State
of Oregon to grant permits for the sinking of wells without
reference to the rights of the irrigators in the State of
Washington. Broadly the State of Washington contends
that by the sinking of the wells the sub-surface water is
intercepted and the otherwise available supply of the river
to Washington irrigators is diminished, and that the water
produced by the wells is wastefully and not beneficially
used. Oregon denies these allegations and alleges that they
may capture the sub-surface water without regard to Wash-
ington rights; that the waters in the wells are mere per-
colating waters and that the owner of the surface land has
45
the right to capture them as a part of the property of the
owner. Oregon contends that its permits to sink wells do
not grant a water right; that the water right is already
in the owner of the land, but that the permit is merely
to record the use, and that such water right could not be
interfered with either by the State of Washington or the
State of Oregon. Oregon contends further that the waters
intercepted are not a part of the stream flow of the Walla
Walla River and do not in any way reduce the surface supply
available in the State of Washington; that the digging of
the wells and the expenditures incident thereto and to the
production of the water is indicative of the inadequacy of
the surface water supply.
STIPULATION NO. 10
This stipulation is in the nature of a supplemental
pleading or an argument and sets forth the respective con-
tentions of the parties as to adverse use, estoppel, vested
rights, and the claim of Oregon that the Tum-a-lum River
in the State of Oregon has been administered as a separate
stream in the State of Oregon.
STIPULATION NO 11
This stipulation sets forth historically the political
history of the states of Washington and Oregon and further
that title to the lands now in private ownership within
said two states has generally been acquired under the public
iand laws of the United States. Paragraph 3 of the stipula-
tion materially limits the pleadings in the case in the fol-
lowing particular:
“It is agreed that, for the purposes of this case,
the individual rights of the respective land owners
Biter
46 |
and water users concerned in both states are
governed by the doctrine of appropriation, and that
no issue of riparian ownership as to such individual
rights shall be raised in this case by either state.”
THE ISSUES
Under the pleadings as framed this court is required to
decide :
(a) Is the State of Oregon depriving the State of
Washington of the use of an equitable proportion of the
waters of the Walla Walla River, a non-navigable interstate
stream flowing within said two states ?
(b) If so, to what extent”
(c) Shall an injunction issue restraining the State of
Oregon from the wrongful diversion of the waters of the
Walla Walla River?
THE LAW APPLICABLE TO DIVISION OF WATERS OF
INTERSTATE STREAMS
This suit is a bill in equity brought by the State of Wasb-
ington against the State of Oregon as an original proceeding
in this court to adjudicate the relative rights of the two states
to the use of the waters of the Walla Walla River. a non-
navigable interstate stream. Each state, under the allega-
tions of the pleadings, claimed riparian rights for the lands
adjacent to the stream and in addition thereto rights “origi-
nating under the law of prior appropriation. After issue
was joined the parties filed their stipulation containing
among other provisions the following:
“It is agreed that, for the purposes of this case
the individual rights of the respective land owners
and water users concerned in both states are governed
i a ira:
47
by the doctrine of appropriation, and that no issue
of riparian ownership as to such individual rights
shall be raiscd in this case by either side.” (Stip.
No. 11.)
ftp ager nae ger
The case is to be adjudicated, therefore, as one in which
each of the contending states has adopted the taw of prior
appropriation as to the origin of rights to the use of water.
The jurisdiction of this court to adjudicate such a con-
troversy 1s supported by ample authority.
Kansas v. Colorado, 206 U. S. 46.
Wyoming v. Colorado, 259 U. S. 419.
Connecticut v. Massachusetts, 282 U. S. 660.
New Jersey v. New Yerk, 283 U. S. 336.
The rules of Jaw applied by this court in the determina-
tion of cases involving interstate streams, whether the rights
sought to be protected arise under the doctrine uf riparian
right or under the law of prior appropriation, are stated
by this court as follows: :
Kansas Vv. Colorado, 206 U. S. 46, 97:
“One cardinal rule, underiying all the relations
of the states to each other is, that of equality of
right. Each state stands on the level with all the
rest. It can impose its own legislation on no one of
the others and is bound to yield its own views to
none. Yet, whenever, as in the case of Missouri v.
Illinois, 180 U. S. 208, the action of one state reaches
through the agency of natural laws into the territory
of another state, the question of the extent and the
limitation of the rights of the two states becomes a
matter of justiciable dispute between them, and this
court is called upon to settle that dispute in such a
way as will recognize the equal rights of both and
at the same time establish justice between them.”
Biiiwistl se ctiowss Le Sin pee
_—_
Connecticut v. Massachusetts, 282 U. S. 660, 669, 670:
48
“The governing rule is that this court will net
exert its extraordinary power to control the conduct
of one state at the suit of another, unless the threat-
ened invasion of rights is of serious magnitude and
established by clear and convincing evidence.”
“For the decision of suits between states, federal,
state and international law is considered and applied
by this court as the exigencies of the particular case
may require. The determination of the relative rights
of contending states in respect of the use of streams
flowing through them does not depend upon the
same considerations and is not governed by the same
rules of law that are applied in such states for the
solution of similar questions of private right. Kansas
v. Colorado 185 U. S. 125, 146. And,-while the muni-
cipal law relating to like questions between indi-
viduals is to be taken into account, it is not deemed
to have controlling weight.
’ “Ag was shown in Kansas V. Colorado, 206 U. S.
46, 100, such disputes are to be settled on the basis
of equality of right. But this is not to say that
there must be an equal division of the waters of an
interstate stream among the states through which it
flows. It means that the “les of right and
equity shall be applied having regard to the ‘equal
level or plane on which all the states stand, in point
of power and rignt, under our constitutional system,
and that upon a consideration of the pertinent laws |
of the contending states:and al. other relevant facts,
this court will determine what is an equitable appor-
tionment of the use of such waters. I yoming V.
Colorado, 259 U. S. 419, 465, 470.
The suit of Wyoming v. Colorado, 259 U. S. 419, Was
brought by the plaintiff to prevent the diversion of water
of the Laramie River arising in Colorado and flowing into
Wyoming. Both states are in the arid region and apply the
49
doctrine of appropriation. The problem there presented was
expressed by Justice Van Devanter as follows, page 470:
“We are thus brought to the question of the
basis on which the relative rights of these states in
the waters of this interstate stream should be de-
termined. Should the doctrine of appropriation,
which each recognizes and enforces within her
borders be applied? Or is there other basis which
is more consonant with right and equity ?”
' After an elaborate discussion of the facts the court said:
_ “We conclude that Colorado’s objections to the
doctrine of appropriation as a basis of decision are
not well taken and that it furnishes the only basis
which is consonant with the principles of right and
equity applicable to such a controversy as this.”
This doctrine was again announced in the case of Con-
necticut ¥. Massachusetts, 282 U. S. 660 at 672.
The rule adopted in the Wyorming-Colorado case as to
priorities is not one of law, but one of equity. Under the
conditions existing in that case such ‘rule was applied as the
measure best adapted to work out the equities between the
parties.
Speaking in Kansas V. Colorado, this court Says:
“We must consider the effect of what has been
done upon the conditions in the respective states and
‘SO adjust the dispute. upon the basis of equality of
rights as to secure as far as possible to Colorado the
benefits of irrigation without depriving Kansas of
the like beneficial effects 6f a flowing stream.” 206
U. S. 100, 109.
In the case of Kansas V. Colorado, above cited, after
having tabulated the growth in population, cultivation and
50
production which had accrued to the State of Colorado by
virtue of the use of the waters involved in the controversy,
the court uses this language:
“Whatever has been effective in bringing about
this development is certainly entitled to recognition,
and should not be wantonly or unnecessarily des- -
troyed or interfered with. That this development is
largely owing to irrigation is something of which,
from a consideration of the testimony there can be
no reasonable doubt. It has been a prime factor in
securing this result, and before, at the instance, of a
sister state, this effective cause of Colorado’s de-
velopment is destroyed or materially interfered with,
it should. be clear that such sister state has not
merely some technical right, but also a right with a
corresponding benefit.” id. 109.
“It cannot be denied, in view of all the testimony
(for that which we have quoted is but a sample of
much more bearing upon the question), that the di-
minution of the flow of water in the river by the
irrigation of Colorado has worked. some detriment
to the southwestern part of Kansas, and yet, when
we compare the amount of this detriment with the
great benefit which has obviously resulted to the
counties in Colorado, it would seem that equality of
right and equity between two states forbids any in-
terference with the present withdrawal of water in
Colorado for purposes of irrigation.” a |)
No state can legislate for or-impose its own policy -
=
upon another state, nor can the decrees entered in one state
have any binding effect upon persons who were not parties
thereto.
Kansas v. Colorado, 206 U.S. 46.
Nebraska Inv. Co. v. Corlett (Wash.) 172 Pace.
851. 2
Savage v. Tacoma (Wash.) 112 Pac. 78.
Savage v. McCorkle (Ore.) 21 Pac. 444,
Carnes v. Dalton (Ore.) 110 Pac. 170.
Develpoment in Washington
51
In the Wyoming v. Colorado case, (at pp. 464, 465) this
court. in commenting on the Kansas v. Colorado case, used
the following language:
“* * * As respects the scope and interpreta-
tation of the ultimate conclusion in that case it
should be observed, first, that the court was there
concerned, as it said, with a controversy between two
States, ‘one recognizing general!y the common-law
rule of riparian rights’ and the other the doctrine
of appropriation; secondly, that the diversion com-
plained of was not to a watershed from which none
of the water could find its way into the complaining
State, but quite to the contrary; and _ thirdly,
that what the complaining State was seeking was
not to prevent a proposed diversion for the benefit
of lands as yet unreclaimed, but to interfere with a
diversion which had been practiced for years and
under which many thousands of acres of unoccupied
and barren lands had been reclaimed and made pro-
ductive. In these circumstances and after observing
that the diminution in the flow of the river had re-
sulted in ‘perceptible injury’ to portions of the valley
in Kansas, but in ‘little, if any, detriment’ to the
great body of the valley, the court said, ‘it would
seem equality of right and equity between the two
States forbids any interference with the present
withdrawal of water in Colorado for purposes of
irrigation;’ * * * What was there said about
‘eqality of right’ refers, as the opinion shows (p.
97), not to an equal division of the water but to the
equal level or plane on which all the States stand.
in point of power and right, under our constitutional!
System. * * *»”
THE FACTS
¢
Washington’s Exhibit No. 17 is a map of the area in-
volved in this litigation and shows the interrelated streams
PARE ON SOIT +
a
making up the Walla Walla River and available for the
irrigation of the lands involved in the controversy. The
City of Walla Walla is the center of a highly developed
agricultural area. (Stip. No. 3). There have grown up
in and about it such industries as its raw material and its
52
market can sustain. It must be quite evident that the
agricultural and industrial development of the area involved
has proceeded without regard to state lines. As this de-
velopment has progressed more lands have been made avail-
able for irrigation than the dependable water supply will
now adequately irrigate. Without protest, so far as the
record shows, the City of Walla Walla, Washington, went
into the State of Oregon at the headwaters of Mill Creek,
a tributary of the Walla Walla River, and secured for itself
a dependabie supply of water for domestic and culinary
uses. While this water right is not in controversy, the fact
of its development and use indicates that the State of
Oregon had permitted water from the available supply to
be taken, appropriated and used exclusively within the State
of Washington. At the same time this use was being de-
ve..ped along the Mill Creek branch of the Walla Walla
River, lands were being brought under cultivation along Mill
Creek and its tributaries. Coincident with this development
in the State of Washington farmers in the State of Oregon
were applying the waters of the Oregon tributaries to irti-
gable lands in that state. The two developments were coin-
cident. The City of Walla Walla wes the largest community
to grow out of the productivity of the cembined area. The
industries were largely centered there and the profits accru-
ing from the interchange of raw materials for merchandise
built up and developed that city. The record discloses n0
purpose, as this development proceeded, to devote water to
lands which would be taxable only within one State or the
—
53
other. Both communities were more interested in the bene-
fits accruing from the general development than from a
competitive effort to develop one community against another.
Development in Oregon
The record does not disclose whether, at some time
prior to the settlement of the Oregon area, the Little Walla
Walla River or the Tum-a-lum River was the main channel
through which the waters arising above the division of the
Walla Walla River into the Little Walla Walla and the
Tum-a-lum were carried north into Washington. Whatever
the fact may be in that particular, it is apparent from the
testimony that at least as early as 1880 the Tum-a-lum River
carried the principal flow of the water north across the
Washington line. All of the streams contributing to the
Walla Walla River are supplied in the main from the snow
falling during the winter period in the Blue Mountains.
With the warmer temperatures of spring these snows are
melted and the streams carrying off this water attain their
highest stream flow. As the temperature is variable. so the
stream siows are variable. They vary not only between the
spring and the summer, but they vary from day to day and
from month to month. Warm winds and sunshine give them a
large supply and colder weather shrinks them. The summer
rains covering 150 square miles of drainage area are gathered
into these streams and augment their flow.
An agricultural community cannot develop and main-
tain itself upon sporadic supplies of water. The farmer
must be able to place reasonable dependance upon the water
supply if he shall make the expenditures and put forth the
effort necessary to reap the harvest incident to the combi-
nation of the soil with the water. The evidence discloses
that the bed of the Tum-a-lum River in Oregon, lying be-
tween the Nursery Bridge in the NE', of the NW!, of
fhe
Ae BLIP TSE ILS TOOTS ee IMEI
a
| Dedbialseyridine
a eee. se
54
Section 1. Township 5 North, Range 35 East, and the McCoy
Bridge on the line between Sections 24 and 25, Township 6
North, Range. 35 East, varies in width from 150 to 1500
feet. and runs through cobble rocks underlain to great
depths with gravel. The evidence does not disclose whether
or not in this area of the river, during the low water period
and prior to irrigation or diversions, there moved anv sub-
stantial amount of surface water. It is conclusively shown,
however, that this channel is an extremely wasteful channel.
In order to avoid this waste and to make the waters of the
Tum-a-lum River available for use within the State of
Oregon the irrigators began as early as 1880 to put crude
and temporary dams across the channel of the river at the
Red Bridge in the SW', of the NE!, of Section 12, Town-
ship 5 North, Range 35 East, and thereby and thereafter
during periods of low water, diverted all of the waters of
the Walla Walla River into the channel of the Little Walla
Walla River, permitting to flow by said dain only that small
quantity of water necessary to supply the right of the East
Side ditch, which takes out of the river just below the dam.
This action upon the part of Oregon irrigators, at least
from 1880 until the date of the trial of this action, rendered
the channel of the Turn-a-lum River, between the Nursery
Bridge and the McCoy Bridge, dry. (Or. Abs. Froiseth, pp.
25, 26), Fee (id. pp. 40, 41), Alta Rogers (id. pp. 33, 34).
Elba Rogers (id. p. 28), Charles Schwald (id. pp. 32, 33),
Mason (id. p. 54), Burlingame (id. pp. 21, 22), Roeder (id.
p. 41), Perry (id. p. 47). The evidence is uncontradicted
that each year from 1880 to 1930, when the spring high
water ceased, the irrigators within the State of Oregon
continuously and without interruption and without protest,
appropriated to their use all of the flow of the Walla Walla
River arising above the Red Bridge.
55
Dr. Woodburn, a witness for the State of Washington,
(k. p. 441) in discussing this question testified:
“Q. And in the months of June, July and
August the stream between the Nursery Bridge and
the McCoy Bridge is naturally a falling stream,
isn’t it?
A. No, it has already fallen. There is no water
there.
Q. And would you consider it an economical
method of distribution of water to attempt to get 22
second feet down the Tum-a-lum Branch during June,
July and August?
A. Well, it isn’t a good irrigation canal if that
is what you mean. It is a natural stream bed, which
is broad in ‘spots, and the water would be somewhat
dispersed. It is not an ideal irrigation canal by a
long shot.”
. The use of the water in the State of Oregon was with
the knowledge of many of the irrigators within the State
of Washington. (Wash. Abs. pp. 41, 42, 52, 64, 67; Or.
Abs. p. 121). The testimony shows that as early as 1891
there was being irrigated from the Walla Walla River,
through the Little Walla Walla River, within the State of
Oregon something more than 2200 acres of land. (Stip.
No. 3). Whatever this amount of land was, the diversion
of the water of the Walla Walla River at the Red Bridge
was complete and continuous. The use may not have been
as economical as modern irrigation methods, in a developed
agricultural district, would dictate, but the fact remains that
all of the water was taken and that it did not during the
Same period, return directly to the channel of the Walla
Walla River through the Ford branch or the Crocket branch,
which are the channels which would have conducted any ex-
cess diversion back into the main river. (Wash. Ex. 17, Or.
TELE OLE NIT NGM
OE RAD a ra
ee PPO ELL TID lie PORT LY
Sere reece corey dae al : big Su
Abs. pp. 3, 7, 33, 34, 42, 48). The wastefulness of the channel
of the Tum-a-lum River between the Nursery Bridge and
the McCoy Bridge is illustrated by actual experiments set
forth in the record. Orin Bowman, a witness called by the
State of Oregon, (Or. Abs. 24), testified that he has had
charge of distributing the water for the Hudson Bay Canal
since 1920: that in 1928 there was turned over the dam at
the Red Bridge 25 c.f.s. of water, and that after forty-eight
hours this substantial quantity of water had not reached
the McCoy Bridge. W. C. Mason, deputy water master on
the Little Walla Walla River since 1923, (Or. Abs. pp. 54,
55) testified that on November 1, 1933, 21 c.f.s. was turned
past the dam and 25 feet was turned down on November
2nd, the following day, and that the waters so turned ran,
during the forty-eight hour period only one-half mile below
the Nursery Bridge. Aubrey E. Perry, an irrigation engineer
employed by Oregon, testified (Or. Abs. p. 48) that in 1928,
25 second feet was turned below the dam at the Red Bridge
and that at the end of three or four days none of this water
had reached the McCoy Bridge. Burlingame, a witness for
the State of Oregon, testified as follows:
“Q. Mr. Burlingame, the development there
upon Gardena, was that largely completed at the
time you left the company and got out of the com-
pany?
A. Yes, sir.
Q. And before the Gardena Farms District was
organized ?
A. Yes, sir.
Q. You left the company at the time the Gar-
dena Farms District was organized, did you?
A. No, sir.
Q. Before that?
A. Before that.
Q. Can you tell us when?
g
E
a-lum River for the purpose of making any
development there during the short season, the
months of July and August and late June?
A. Only what runs under the bridge there and
what comes through those ‘spring branches that run
to the headgate.
Q. Now, Mr. Burlingame, when you say what
water runs under the bridge you refer to that that
rises at the McCoy Bridge?
A. Yes.
Q. And when we refer to the springs you
mean Big Spring and East Spring?
A. Yes.
Q. Or the East Prong, called the East Little
Walla Walla in Washington, isn’t it?
A. Yes, sir.
Q. And there is a McEvoy Spring Branch that
runs in there too, is there not?
A. Well, there’s numerous springs that head in
above the headgate.
Q. Mr. Burlingame, do you know the first year
that rights up Yellowhawk and up Mill Creek were
shut off for the purpose of allowing the priority to
Gardena?
A. I know it was done, but I can’t remember
the date.
Q. Was that done before or after you left the
company do you recall?
A. I think it was done before.”
Dr. Woodbi rn testified that in June, 1932, he and Mr.
Humphrey were making a joint study of the stream and
a a al De”
i
58
that 20 ¢.f.s. of water passed the bridge but did not go
across the dry area, but might have gone under it. (Wash,
Abs. 142).
During the period when the channel of the Tum-a-lum
River trom the Nursery Bridge to the McCoy Bridge has
been dry after the recession of the high water, the earea
lving two miles to the south of the Washington-Oregon
State line has continued to produce a substantial amount of
water available for the irrigation of Washington lands.
Wash. Ex. 30, page 12, shows that in 1933, in July and
August, when the channel of the Tum-a-lum River had been
completely shut off at the Red Bridge, there was a flow
across the state line into Washington ot trom i2 to 22
second feet of water.
The foregoing recitals impel two conclusions: first, that
for more than fifty vears last past, during the summer
irrigation season, the Oregon irrigators have appropriated t¢
themselves all of the flow of the Walla Walla River at the
Red Bridge ai.d permitted none of it to go on down to Wash-
ington users: and second, that to permit quantities oi water
to flow past the Red Bridge during the low water stages ot
the river is wasteful and uneconomic. During the period
when Oregon was so diverting the water away from the Tum-
a-lum River, and into the Little Walla Walla fiver. the
State of Washington, as shown by the tabulation of the
decrees of the states of Washington and Oregon (Or. Abs.
9) and the stipulations on file herein, has continuously in-
creased its irrigated acreage at substantially the same rate
that Oregon has increased its irrigated areas. (Or. Hriet,
p. 16).
-
59
THE GARDENA FILING
On the 24th day of July, 1891, J. T. Kirk, J. F. Boyer
and W. F. Courtnay filed a notice of intention to appropriate
500 cubic feet per second ot time “of the waters of the
Walla Walla River now in said river at the place opposite
where this notice is posted.” (Stip. No. 5). Apparently
this notice lapsed or was subject to lapse, because of ‘failure
to begin work within the period provided by the law of the
State of Washington. Successive notices of intention te
appropriate water from the Walla Walla River were there-
after filed in February, 1892, end in July, 1892. Almost
immediately after the filing of these applications E. C.
Burlingame organized and became the head of the Walla
Walla Irrigation Company, which company succeeded to the
above mentioned applications, and proceeded to make sur-
veys, begin the construction of canals and ultimately to take
water from the Walla Walla River for irrigat‘on purposes. °
The original applications for the use of this water show
that the lands to be irrigated lie within the State of Wash-
ington and the State of Oregon and include large areas of
land unindentified except by township and range. (Stip. No.
5, Exs. “B”, “C” and “D’”). The main diversion canal took
out of the Walla Walla River, as shown upon Washington's
Ex. 17, at a point in the McBean Donation claim and below
the point where Stone Creek, Yellowhawk Cree: and the
East Little Walla Walla River flow into the main channel
of the Walla Walla River and continued Westerly o distance
of about twelve miles to a tract of some seven thousand
acres of land delineated upon Wash. Ix. 17 2s “Gardena
Tracts.” In 1928 an irrigation district was formed. under
the Washington law, known as the Gardena Farms District,
Which district acquired all of the water rights of the Walla
60
Walla Irrigation Company. During the period between 1892
and 1928 there was expended upon this project, as set torth
in Ix. “F” attached to Sitpulation No. 5, the sum ef $297...
0738.65. This development resulted in the awarding by the
Washington court, to said Walla Walla Irrigation Company
and its successors, the Gardena Farms District. a wate
right on the Walla Walla River with a priority of 1892; wut
which priority had certain marked limitations. This certifi-
cate of water right was granted in an action entitled, “State
of Washington, Plaintiff v. Charles Ackerson, et al, Defen-
dants,” filed in the Superior Court of the State of Washing.
ton for the County of Walla Walla. (Stip. No. 5, Ex. “A”)
(Wash. Ex. 11, page 69). This water right is set forth in
the decree (Wash. Ex. 11. pp. 76 and 146) as follows :
“*That claimant’s 5,000 acres of land, which
was the amount irrigated at the time of the hearing
of the claim of said Walla Walla Irrigation Com-
pany before the referee, to wit: on the 29th day of
March, 1926, is entitled to the use of water to the
extent of 66.67 cu. ft. per second from April Ist td
July Ist; 50 cu. ft. per second from July ist to
October Ist, and 1 cu. ft. per second for each 50
acres of land for winter irrigation; provided, that
from and:after said 29th day of March, 1926, the
remaining lands susceptible to irrigation which may
in the future be developed, shall be entitled to a
quantity of water for irrigation at the rate herein
allotted, as said lands may be brought into cultiva-
tion from time to time until a maximum wf 7,000'
acres are developed and the maximum ef water here
in awarded is used; and that the amount of land to
which this claimant is entitled to water under the
above provision shall be determined at the beginning
of the spring irrigation season each year, by the
State Supervisor of Hydraulics.’ ”
61
XK
Paragraph 14 of the decree at page 146, provides:
““That « superior right on the Walla Walla river
or any of its tributaries runs. against all inferior
rights on the tributary to which said right is at-
tached as well as against all inferior rights on tribu-
taries entering the stream above the point of diver-
sion of such right except that prior ckass rights of
the Walla Walla Irrigation Company will not run
against inferior class rights on either Mil] Creek or
Garrison Creek by conveyance of water through
Yellowhawk Creek, nor will the prior class rights of
the Attalia Irrigation District run against inferior
class rights for lands located in the Walla Walla
valley. A superior right does not run against in-
ferioy rights on other tributaries that entey the
stream below the point of diversion of said superior
right.’ ”
On pages 72, 73, and 74 of that decree, under class 30,
with 1892 priority, are claims Nos. 588. 590, 591, 592, 594.
a
611, 614, 615, 617, 624. 606, 607, 608. 609. 610 and 619 (a
total of 1,095 acres), followed by a note on page 74 which
refers to ¢hese proof numbers and says:
“NOTE: By virtue of the decree in the case of
the Lowden Company et al. v. The Walla Walla Irri-
gation Company, records of this court, all rights of
the above named claimants in this class taking water
from the Walla Walla river are prior to that of the
Walla ‘Walla Irrigation Company given in Class 30."
In Class 31> under priority of 1893. on pages 77, 78.
of that decree, are found proof numbers 583° and 599
for a total of 388.96 acres. And following them is 4 note
Which reads as follows:
“NOTE: Under provisions of the decree iy the
case of the Lowden Company et al. vy. The Walla
62
Walla Irrigation Company, records of this court, all
the above lands included in this class taking water
from the Wall: Walla river are entitled to a priority
over the lands included in the claim of the Walla
Walla Irrigation Company.”
To this action the State of Oregon was not a party
and no irrigator within the State of Oregon was a party.
The record shows that the development of the Gardena
project beginning in 1892 was slow and intermittent. (Stip.
No. 5). It was financed in two ways: First, by the e:fort
of Mr. Burlingame, its head, and second, by the sale of stock.
The evidence shows without dispute that from 1892 to the
year 1930, there was no ‘dlaim of right and no exercise of
a right to have the Oregon irrigators, after the period when
the flow of the stream had so receded that all of it was
diverted to supply the Oregon requirements, turn water
past the Red bridge for use within the State of Washington. -
Coincident with the development of Gardena, and after
1911, Burlingame, (Or. Abs. p. 21) the President and large
owner of the Walla Walla Irrigation Company, wes also
interested in and operating another - canal beginning at a
point in the Siate of Oregon on the Tum-a-lum River below
the Red Bridge. This development was the Hudson bay
Canal, which runs west from the point of diversion for a
distance of substantially ten miles. The Hudson Bay right
: .
it
in the Oregon decrees is given a priority of 1905. it Is
based upon the right of the Hudson Bay Company to have
the use, during the winter and early season, of the water
of the Tum-a-lum River. The water if so usea is in deroga-
tion of the right of the Walla Walla Irrigation Company
to have water tlow down the Tum-a-lum to supply the uses
under the Gardena appropriation. At no time did the Walla
63
Walla Irrigation Company deny the right of the Hudson Bay
Company to take into its canal the quantity of water de-
creed to it under the Oregon decrees. Mr. Burlingame was
for a long period in charge of both companies at the same
time. This conduct upon the part of Burlingeme impels
but one conclusion—that never at any time after the original
appropriation of 1892 did the Walla Walla Irrigation Com-
pany rely upon or claim right to the use of the waters
of the Walla Walla River above the Red Bridge. The Hudson
Bay right is a secondary right. The record shows that
upon the recession of the high waters, the Hudson Bay use
is discontinued. (Wash. Ex. 27). In this connection it is
further significant that during the period of high water the
Washington users do not need to impinge upon the Oregon
uses. (Barney, Wash. Abs. 36: Wash. Ex. 27, Wash. Ex.
18 p. 11 et seq., p. 120 et seq.).
The evidence shows that during the years 1929, 1930,
1931, 1932 and 1933 when the Washingtor Water Master
began the regulation of wzter within the State of Wash-
ington and shut off Washington appropriators with priorities
subsequent to 1892 the Iludson Bay Ditch was substantially
dry and the Gardena Canal was stil] getting practically its
decreed amount. In other words, when the Gardena project
was short of water the Hudson Bay Company had been cut
down to 2 point where its draft upon the river was negligibie.
Bowman testified (R. p. 516) that in 1919 he went to
work for the Milton-Freewater and Hudson Bay Irrigation
Company: that in 1920 a headgate was constructed in the
channel of the Tum-s-lum River under the direction of Carl
Hartvedt, Superintendent of the Gardena project. which
headgate was designed to divert the waters of the Tum-a-lum
River into the Hudson Bay Canal. This of course was ample
3
Zz
*
ie
64
notice of the intention of the Hudson Bay Company to take
the water and that it was taken with the knowledge and
consent of the Walla Walla Irrigation Company.
The high water in the Washington tributaries to the
Walla Walla River during the period of flush flow was suffi-
cient to supply the demands of all of the Washington users,
and after the secondary rights on the Oregon side were all
shut off, the Washington users were still unregulated and
using such quantity of water as their necessities might
dictate. (Barney, Wash. Abs. 36, Wash. Ex. 27, Wash. Ex.
18, p. 11 et seq., D. 120 et seq.). There can be no question
but that through all the years from 1892 until 1930, Bur-
lingame, President of the Walla Walla Irrigation Company,
knew that when the waters receded from their spring flow,
the Oregon users appropriated the entire stream. When,
on the 24th of July, 1891, Mr. Kirk, Mr. Boyer and Mr.
Courtnay posted their notice of intention to appropriate,
the entire flow of the Walla Walla River in the State of
Oregon above the Red Bridge had been diverted into the
Little Walla Walla River and was not then passing the
point where the notice was posted and never thereafter
passed or {lowed to that point of diversion during the months
of late June, July and August. In 1939 we have evidence
of the first claim upon the part of the State of Washington
or its irrigators that the conduct of the State of Oregon,
in the complete and exclusive use, during the summer season,
of that part of the Walla Walla River flowing above the
Red Bridge, is in derogation of the rights ot W @shington
irrigators. Wash. Ex. 24, a telegram from the State Engi-
neer of the State of Washington to the State Engineer of
‘
Oregon, reads as follows:
65
“April 23, 1930.
Rhe Luper, State Engineer
Salem, Oregon
Just advised entire Walla Walla River being
diverted at Freewater.
Charles J. Bartholet.”
On the same day a telegram, Wash. Ex. 25, was sent as
follows:
| “Rhea Luper
| Salem, Oregon
Will you take steps to enforce a more economic
use of water from Walla Walla River in Milton and
Freewater sections or cause a regulation which will
give Washington water users waters to which they
claim they are entitled Stop Complaint comes from
Water Master and Walla Walla Irrigation District.
Charles J. Bartholet.”
To this the State Engineer of the State of Oregon replied on
April 24, 1930, Wash. Ex. 26:
“Believe it has always been customary to divert
in Oregon the entire flow of the Walla Walla
River. After such diversion. return seepage has sup-
plied the Washington side. We have no authority
| Without court order or compact to recognize rights
| . outside of State.
Rhea Luper, State Engineer.”
| It is significant that as late as 1930 the State Engineer
| of the State of Washington, in charge in that state of the
distribution of waters, and particularly of the Gardena Farms
District, should wire to the State ef Oregon, not to claim a
priority for the Garc ‘na lands, but to insist upon a more
economic use of the waters by the irrigators within the
State of Oregon. (Barney, Wash. Abs. 39).
PO DP TONO
~~
|Z PE ROTA WT
When on April 25, 1930. the first of the above tele-
grams Was sent, the Gardena Canal had been receiving since
April 1, 116 ¢.f.s. of water under a decree allowing it but
66.67 c.f.s. during this period, and on April 22nd, the day
before that telegram was sent, the amount of water the
Gardena Canal was receiving had been reduced to 62% c¢.t.s.,
| an amount still near its decreed right. (Barney, Wash.
Abs. 39, Wash. Ex. 18, p. 21). In 1930 the Washington
water master, Barney, did not begin to regulate Washington
users until June 10th and did not close all rights with
priorities subsequent to 1892 until July 6th. (Wash. Ex.
27).
Notwithstanding the fact that the State of Washington
now contends that at all times the State of Oregon has
diverted waters from the Walla Walla River to which its
users, and particularly the Walla Walla Irrigation Company,
were entitled, the Walla Walla Irrigation Company, needing
additional water, spent during the years 1910, 1911 and 1912,
the sum of $56,451.18 to secure sewage water from the
City of Walla Walla for the irrigation of its lands, and
during the years 1905, 1909, 1910, 1913, 1914 and 1925
spent approximately $10,000 in drilling wells in search of a
new water supply. So far as the evidence shows, during all
of this period until 1930, on no occasion did the State of
Washington or any of its irrigators assert a claim to, or
make an effort to secure, the use of waters arising above
the Red Bridge during the low water period.
Paragraph II of Stipulation No. 3 indicates that the
rights of the Milton-Freewater and Hudson Bay Company
and of the Gardena project have been recognized as inade-
quate for summer irrigation. Each Ccempany has resorted
to winter irrigation in order to provide against summer
: eh
mn we
: “
67
water shortage. The Washington court decreed to Gardena
a winter irrigation right of fifty second feet of water. This
practice must result from the fact that other claimants
have exercised the right to the prior use of the water dur-
ing the irrigation season.
In 1891 the law of the State of Washington controlling
the appropriation of waters contained the following pro-
visions:
“*(2) Notice of Appropriation. Any person,
persons, corporation or association desiring to ap-
propriate water must post a notice in writing in a
conspicuous place at the point of intended storage
or diversion, stating therein: (1) That such appro-
priator claims the water there lying, being or flow-
ing to the extent of one cubic foot of water per sec-
ond of time, or some multiple or some fractional
portion thereof; (2) The purpose for which said
water is appropriated and the place or places, as near
as may be, of intended use; (3) the means by which
it is intended to store or divert the same; (4) a copy
of the notice must, within ten days after it is posted,
be filed for record in the office of the county auditor
of the county in which it is posted. (L. 1891, p. 327,
Sec. 2; Rem.—BEal., Sec. 6317.)
see
(3) Construction of Works, When to Begin.
If said use is by storage, the appropriator must,
within three months after the notice is posted, com-
mence the construction of the works by which it is
intended to store the same. If said use is by diver-
Sion, the appropriator must, within six months after
the notice is posted, commence the excavation or con-
struction of the works by which it is intended to
divert the same; it being herein expressly provided
that such works must be diligently and continuously
prosecuted to completion, unless temporarily inter-
rupted by the elements. (L. 1891, p. 328, Sec. 3;
Rem.—Bal., Sec. 6318.)
+ Te RRR
Deltas te
ict Bic SS ac IOGEAR NES
i AMES GALLE S
My et ey eed
.
ES neste LE = RAE Ts,
68
***(4) Veined’ Right—Forfeiture by Non-Compli-
ance. ‘By a strict compliance with the above rules,
the appropriator’s right to the use of the water
actually stored or diverted relates back to the time
the notice was posted; but a ‘ailure to comply there-
with deprives the appropriator of the right to the use
of the water as against a subsequent appropriator
who faithfully complies with the same. (L. 1891, p.
328, Sec. 4; Rem.—Bal., Sec. 6319.)’”
As shown by Ex. No. 5, in 1898 the Walia Walla lrriga-
tion Company began the sale of stock entitling the holder
to the use of water and continued the sale ot such stock
until the year 1930. This stock entitled its owner to a pro
rata share of the water belonging to the Company. During
the entire period no water user was delivered any water
arising on the Oregon side above the Red Bridge when the
water so arising was necessary to meet the requirements of
Oregon users. Instead of resorting to their claim against
Oregon, the Company first secured the right to the use of
the sewage water of the City of Walla Walla and then under-
took to increase its water supply by the drilling of wells.
In 1917 the Public Service Commission of the State of
- Washington appointed Hartvedt to take charge in their be-
half of the Walla Walla Irrigation project. (Wash. Abs.
page 69). At that time water stock had been issued fer
2245 acres of land. (Wash. Abs. 70). This stock so issued
was given a preferential right, and called Class “A” stock.
Stock thereafter issued was denominated Class “B” stock,
and such Class “B” stock had a right secondary to Class
“A” stock. This action of the State of Washington, through
one of its instrumentalities, is significant. Without calling
for water from the Staie of Oregon it then recognized an
inadequate right for this project—a high water or flood
69
right as to all lands in excess of 2245 acres. (Wash. Abs.
page 70).
This conduct seems entirely inconsistent with the present
claim made by the plaintiff state. The complaint in this
case alleges and by stipulation it is agreed, that during the
past eight or ten years there has been a marked shortage of
water in the Walla Walla River and its tributaries. With
the failure of the sewage supply and the failure of the wells
to produce and the shortage of the water in the water shed
generally, the State of Washington, for the first time in
1930 made its demand upon the State of Oregon for an
economical use of waters within that state.
A water right is finally perfected and fixed by the ap- .
plication of the water sought to be appropriated to a benefi-
cial use. The following cases and texts set forth the law
upon this subject:
In re Water Rights in Silvies River, 237 Pac. (O» )
322, 336.
“As a general rule, to constitute a valid appropri-
ation of water, three elements must exist: (1) An
intent to apply it to a beneficial use, existing at the
time or contemplated in the future; (2) a diversion
from the natural channel by means of a ditch, canal,
or other structure; and (3) an application of it with-
in a reasonable time to some useful industry.”
Sowards v. Meagher, 108 Pac. (Ut.) 1112, 1116:
“The three principal elements to constitute a
valid appropriation of water, and, as stated by the
court in the case of Low v. Rizor, 25 Or. 557, 37
Pac. 82, and approved by the same court in the case
of the Nevada Ditch Co. v. Bennett, 30 Or. 59, 45
Pac. 472, 60 Am. St. Rep. 777, are: ‘(1) An intent
to apply it to some bneficial use; (2) a diversion
from the natural channel by means of a ditch, canal,
70
or other structure, and (3) an application of it within
a reasonable time to some useful industry.’ ”’
Continuing in this case, the court uses this language; (p,
1117):
“Whatever else is required to be or is done,
until the actual application of the water is made for
a beneficial purpose, no valid appropriation has been
effected. This was. so before the statute, and it is still
so under the statute. The filing of the application
with the state engineer, as required by the statute does
not establish an appropriation of water. It Lut takes
the place of, and is, the preliminary notice of intention
to appropriate. Unless the construction of the works
are commenced and completed within the time al-
lowed by the engineer, and the water diverted and
applied to the veneficial purpose of the proposed ap-
propriation the filing of the application is for naught,
and no completed valid appropriation has been made.”
Sander Vv. Bull, 135 Pac. (Wash.) 489, 491:
“Appropriation of water consists in an intention
to appropriate followed by reasonable diligence in
applying the water to a beneficial use.”
In re Water Rights in Alpowa Creek, etc., 224 Pac.
(Wash.) 29, 31:
“An appropriation of water consists of an inten-
tion to appropriate followed by a reasonable diligence
in applying the water to a beneficial use.”
Kendall v. Joyce, 93 Pac. (Wash.) 1091.
In this case the court holds that one who, at a time
when the law did not authorize it, tiled a notice with the
~ auditor of the county reciting that he claimed 500 inches
of water from a stream at a certain point and an additional
‘
o——
500 inches at a certain other point, but did not divert the
water and apply the same to beneficial use within a reason-
able time, acquired no rights.
Wrathall v. Johnson, 40 Pac. (2d) (Ut.) 755, 783:
“Essential to the appropriation is that of use.
An appropriation is the act of turning, setting aside,
taking possession of, or applying te a particular use
a definitely ascertained quantity of water to a par-
ticular and beneficial purpose.”
67 C. J. page 982:
“The right initiated by notice is an inchoate
right until perfected. This inchoate right may be lost
by failure to perfect or by abandonment.”
Wiel’s Water Rights in the Western States, Third Edi-
tion, Vol. 1, page 406:
“Sec. 376. NOTICE ALONE NOT ENOUGH —
It need hardly be said that merely posting a notice is
not enough unless the other requisites of a bona fide
intent, diligence and completion, are also complied
with. It is well settled that the posting of a notice
gives no rights if the other requisites are not com-
plied with.”
Id. P. 430:
“* * * and this has been followed generally
in the desert States and became the accepted form of
statement, viz., that there can be no appropriation
until the actual use is made.’
Note, P. 430:
““The final step, and the most essential element,
to constitute a completed valid appropriation of water,
is the application of it to a beneficial purpose. What-
ever else is required to be or is done, until the actual:
72
application of the water is made for a Dbeneficia]
purpose, no valid appropriation has been effected,’
Sowards v. Meagher (Utah, 1910), 108 Pac. 1113.
Hagerman Co. v. McMurray (N. M.), 113 Pac. 823.”
During the period after the recession of the high waters
in the tributaries of the Walla Walla River, none of the
waters arising above the Red Bridge were ever applied to
a beneficial use within the State of Washington. ‘The record
further shows, as herein elsewhere cited, that quantities of
water as much as 25 second teet, half of the Gardena right
after July lst, turned over the da
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