Minton v. Coast Property Corporation

CAMPBELL, C. J. The Coast Property Corporation, an Oregon corporation, is now, and for many years last past, it and its predecessors in interest have been the owners of the SW}4 °f the SW% of section 23, T. 14 S., R. 12 W., W. M., Lincoln county, Oregon. On this land two springs or seepages arise. A portion of the land slopes somewhat abruptly to the west. Some distance up the hill, two springs or seepages arise, the waters from which seep or ooze through brushy, *209 swampy ground and unite a short distance from their source and form a stream at least during the wet season. It would appear as if this part of the land is in the form of an inclined plane considerably elevated at the end where the springs and seepages arise. There is no gully or canyon through which the waters from the springs and seepages flow. Plaintiff is the owner of a parcel of land, 7.3 acres, lying in sections 22 and 23, T. 14 S., E. 12 W., W. M., adjoining the said tract belonging to the Coast Property Corporation on the west at a lower level. On August 15, 1925, B. P. Felger, plaintiff’s predecessor in interest, filed an application in the office of the state engineer for a permit to appropriate .25 of a cubic foot per second of the water from said springs and seepages' for domestic and irrigation purposes. On April 16, 1927, he filed another application on the same water for a permit to appropriate .5 of a cubic foot per second to supply fishponds. Both applications were approved by the state engineer and permits granted. Thereafter said B. F. Felger built a small dam on the Coast Property Corporation’s land and laid a pipe over said land to the tract now owned by plaintiff and used the water for the purposes designated in his permit. On July 12, 1928, certificates of water right were issued by the state engineer confirming said permits. The application for the permits reads as follows: “I * * * do hereby make application for a permit to appropriate the following public waters of the State of Oregon subject to existing rights; * * *” Plaintiff, by mesne conveyances became and now is the owner of the parcel of land owned by the said Felger and succeeded to whatever rights that may have been obtained by virtue of said certificates of water right. *210 Plaintiff brought the instant suit to quiet title to her 7.3.-aere tract of land claiming that the water right represented by said certificates were appurtenant thereto and sought to have her title to such appropriation of water decreed by the court as such an appurtenant. Appellants and the other defendants were made parties to the suit. None of defendants, except appellants, are interested in this appeal. Defendant Coast Property Corporation filed an answer and disclaimed any claim or interest to plaintiff’s 7.3-acre tract of land, but denied that plaintiff had any right or title to the water or the use thereof attempted to be appropriated by said certificates or that such waters or the use thereof were appurtenant to plaintiff’s land. For a further and separate defense it alleged, in substance, ownership by itself and its predecessors in interest in the springs and seepages together with the land upon which they arose and from which the water was attempted to be appropriated. It further alleged that during all times prior to December, 1931, the legal title to the said land was in the Lumberman’s Trust Company; that on said date the Lumberman’s Trust Company conveyed said land to this defendant which has been the owner ever since; that during the time that said Lumberman’s Trust Company held the title to said land, one George E. Frost was in charge of said property as attorney in fact for the real owner; that said Frost had no authority to transfer any interest or grant any easement in said land or any of the appurtenances thereto; that during said time said B. F. Felger applied to said Frost for permission to lay a pipe across said lands to said springs for the purpose of conveying the waters to what is now plain *211 tiff’s property; that said Frost informed said Felger that he had no authority to grant said permission to take the water or to lay a pipe over said land but did permit said Felger to lay said pipeline with the understanding and agreement that said permission was revocable at any time; that thereafter said Frost revoked said permit but that plaintiff, who is said Felger’s successor in interest, has refused to remove said pipeline and claims to be an appropriator of the water of said springs and seepages with the right to divert the same from the premises on which it arises. Upon trial, the circuit court entered a decree which, after quieting plaintiff’s title to her 7.3-acre tract of land and making some other provisions from which no appeal is taken and which are immaterial to the decision of this case, further decreed as follows: “It is further Ordered, Adjudged and Decreed that as appurtenant to the above described real property, the plaintiff is entitled to the right to the use of the water from a small stream arising upon the SW% SW14 of Section 23, in Township 14 South, Eange 12 W. W. M., as follows: # # # # # The use of the said water under the above mentioned Water Eight Certificates is appurtenant to the lands of the plaintiff, to which her title is quieted under this decree, and is limited to the uses specifically stated in the said Water Eight Certificates, and to the volume of water permitted thereunder. The said Water Eight Certificates are both in connection with the same source of supply, and the water under the same is diverted by the same dam, and transmitted through the same pipe line. The source of supply is a small stream originating upon the said SW14 SW14 of Section 23, in Township 14 South, Eange 12 W. W. M. It is further Ordered, Adjudged and Decreed that the plaintiff and her predecessors in interest are without license, easement, right of way or any right what *212 soever, in, to, or across the SW¼ SW¼ of Section 23, in Township 14 South, Eange 12 W. W. M., for the purpose of establishing a diversion- dam, or for the purpose of installing and/or maintaining a pipe line thereon, though plaintiff and her predecessors in good faith claimed an easement for such purposes from one without authority to grant the same. It is further Ordered, Adjudged and Decreed that this suit, be, and is hereby dismissed as to the defendants, Myrtle Helmick and Charles D. Helmick, her husband, without costs to either party.” From the part of the decree affecting the water right and entering judgment for costs, the Coast Property Corporation and George E. Frost appeal. Let it be understood at the outset that the question presented involves the attempted appropriation of water from privately owned lands, and in no way concerns waters on public lands. Both respondent and appellants suggest that the main question presented by this appeal is what construction should be placed upon § 47-1401, Oregon Code 1930, which reads as follows: “All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, or seepage waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the right to the use of such waters.” If the waters arising on the Coast Property Corporation’s land were subject to appropriation by one not the owner of the land at the time respondént’s predecessor made application to appropriate, or, if being subject to appropriation, a valid appropriation was made, then respondent has a right to the use of *213 said waters; but, if not so subject to appropriation, or if no valid appropriation was or could be made because the lands on which the appropriation was sought to be made were not unoccupied public lands but were privately owned lands upon which plaintiff’s predecessor had made an unauthorized entry and erected a dam and installed a pipeline to conduct the water therefrom without defendant’s knowledge or consent, then respondent and her predecessor in interest took nothing by virtue of said application and certificate of water right. The legislature of this state has declared that: “All water within the state from all sources of water supply belongs to the public.”: Laws of 1909; Oregon Code 1930, §47-1401. In 1924, the constitution of the state of Oregon was amended to read: “Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.” Constitution of Oregon, Article I, § 18. It will be observed that this constitutional provision together with the foregoing sections of the statute have the effect of at least limiting the common-law riparian rights. Section 47-1401, supra, is practically identical with section 3177, Revised Statutes of Colorado, 1908 (Laws of Colorado, 1889), from which it was probably copied. The Colorado case cited by respondent, as construing *214 the statute favorably to his contention, was a case where a man named Dotson, a homesteader, constructed a ditch over public lands of the United States to convey the rain water, that fell and accumulated in a gulch on public lands, to his land for irrigation purposes. Later, a man named Binker homesteaded a piece of land over which the ditch conveying the water was built and between the source of the water and its place of use. Thereafter, Binker sold to the railroad company which built its roadway across and filled up the ditch. Dotson then brought action for damages for destroying his water supply. The defendant answered admitting the obstruction of the ditch but claimed that the source of supply was not a running stream and therefore not subject to appropriation. The court held that the water in the gulch was a running stream under the meaning of the statute above cited, and subject to appropriation and belonged to the first appropriator: Denver T. & F. W. R. Co. v. Dotson, 20 Colo. 304 (38 P. 322). To the same effect see Borman v. Blackman, 60 Or. 304 (118 P. 848); Wright v. Phillips, 127 Or. 420 (272 P. 554). The Washington case cited by respondent was a case based on a similar statute where the owner of land, upon which a spring arose forming a stream, turned the stream into a different channel and kept it running there for more than 20 years. In the meantime a homesteader took up land through which the stream flowed in its new channel and used the water for irrigation. Thereafter the owner of the land, upon which the spring arose, turned the stream back into its original channel. The court held that, the stream having been kept in its artificial channel so long, the homesteader became entitled to riparian rights oh the stream in its new channel, and ordered the owner of *215 the land to return 40 per cent of the flow during the irrigation season: Hollett v. Davis, 54 Wash. 326 (103 P. 423). In a recent decision, April 29, 1935, California-Oregon Power Company v. Beaver Portland Cement Company, 55 S. Ct. 725, 79 L. Ed. 754, the supreme court of the United States, in discussing the status of the common law in the Western States, said: “Petitioner insists that prior to the adoption of the Oregon Water Code of 1909, infra, the common-law rule that the riparian owner was entitled to the natural flow of the stream across or along the border of his land in its accustomed channel was recognized and in full force in the State of Oregon. Respondents contend to the contrary. Both cite many Oregon decisions and argue the matter at length. But an examination of the authorities leaves the question in doubt. In dealing with cases where the parties making conflicting claims were both riparian owners, the doctrine of the common law seems to have been recognized. Other cases appear to accept what is called a modified form of the common-law rule; and still other decisions apparently enforce the rule of appropriation. It is suggested by respondent that, prior to the adoption of the Water Code in 1909, the policy in respect of water rights was developing and the law on the subject of riparian rights was in a state of flux. There appears to be reason in the suggestion. But, in view of the conclusion to which we have come, it is unnecessary to pursue the inquiry further. * * * For many years prior to the passage of the Act of July 26,1866, c. 262, § 9, 14 Stat. 251, 253, the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, *216 or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. Jennison v. Kirk, 98 U. S. 453, 457-458. The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall. 670, 683-684; Atchison v. Peterson, 20 Wall. 507, 512-513. This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation at the hands of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. * * * The Supreme Court of Oregon in Hough v. Porter, 51 Ore. 318, held that the legal effect of the language already quoted from the Desert Land Act was to dedicate to the public all interest, riparian or otherwise, in the waters of the public domain, and to abrogate the common-law rule in respect of riparian rights as to all lands settled upon or entered after March 3, 1877. The supplemental opinion which deals with the subject beginning at page 382 is well reasoned, and we think reaches the right conclusion. Subsequent decisions in Oregon are to the same effect. Hedges v. Riddle, 63 Ore. 257, 259-260; Hill v. American Land & Livestock Company, 82 Ore. 202, 207; Allen v. Magill, 96 Ore. 610, 618-619.” Respondent’s predecessors had a permit from the state engineer to appropriate water but such permit did not authorize him to trespass upon the land of the predecessor of the Coast Property Corporation. The fact that he went upon the land of said appellant by leave of one who had no authority to grant such leave made it none the less a trespass. Granting, for the *217 sake of the argument, that the legislature may declare that all the waters of the state, from whatever source of supply, “belong to the public”, it has not said, nor has it attempted to say the land when privately owned, through and over which the water flows, belongs to the public. By virtue of the permit granted by the state engineer, respondent’s predecessor had a right to make an appropriation, providing that the springs and seep-ages in question were a flowing stream, yet his permit gave him no authority to trespass upon appellant’s land. “Although the water is subject to appropriation, the right to appropriate must be exercised without trespass upon the land of another. The water may be running on its natural course and subject to appropriation, but no one can enjoy this bounty of the government unless he can get to the water. He may avail himself of the permission of the government to approach the stream on its land. He may secure by purchase or gift the consent of private owners to gain access over their lands, and by adverse possession for the statutory prescriptive period he may maintain his appropriation as against private owners over whose lands he has conducted the waters: Caviness v. La Grande Irr. Co., 60 Or. 410, 420 (119 Pac. 731). A court of equity will not aid one who takes the water without right in the first instance, unless his possession has been continued adversely long enough to give him title by prescription.” Allen v. Magill, 96 Or. 610 (189 P. 986, 190 P. 726); Barker v. Sonner, 135 Or. 75 (294 P. 1053). The respondent’s predecessor, having attempted to appropriate the water by going upon appellant’s land without leave or license, now wishes to have the court confirm what was acquired by trespass. That part of the decree of the circuit court appealed from will be reversed and a decree entered decreeing *218 that respondent has no interest in or to the waters arising on appellant Coast Property Corporation’s land by virtue of the certificates of water right described in plaintiff’s complaint. Neither party will recover costs in this court or the circuit court. It is so ordered. Belt and Rossman, JJ., concur. Rand and Bean, JJ., concur in the result.