Carnes v. Dalton

Mr. Justice King delivered the opinion of the court. 1. The facts above stated are practically conceded by the pleadings, as well as by defendant’s testimony, only the legal effect thereof being in question. Defendant admits removing the four-foot board from his head gate, when there was no surplus water in the company ditch, occasioning thereby the depletion complained of, and at the same time expressly recognizes that plaintiffs’ water right through the ditch is prior in time and superior in right to the claim of defendant and his co-owners. The only point, then, with which we are concerned, and as to which there is any difficulty, is whether plaintiffs had a right to elect to take the water through the box at the point mentioned. There can be no question, under the pleadings and admissions of defendant,; as to plaintiffs being entitled to the quantity, when needed, capable of flowing through the box provided at his point of diversion. The conceded one-eighth interest could not, without pressure, flow through a box one foot square. But if plaintiffs elect to take less than the quantity to which they may be entitled, it is obvious that defendant is not in position to complain. Furthermore this quantity appears to be adequate for. plaintiffs’ purposes. 2. It will be remembered that plaintiffs were not parties to the former suit, and are in no wise bound thereby, and their interests, so far as here involved, must be considered as if such suit had never been instituted. It is — 603 — argued that the suit in hand was properly dismissed, not only for the alleged reason that there was no interference or pretended interference with plaintiffs’ rights, but on account of the injury complained of being the result of wrongful acts by Kelsey. It is true that Kelsey was enjoined by the former decree from either removing boards from, or obstructing the flow through Dalton’s half of the head gate, unless otherwise ordered by the court, provision for which was reserved in the decree. If, then, Kelsey violated this decree and closed the head gate, that is a matter with which Dalton and Kelsey only were concerned, and not these plaintiffs. 3. Defendant and his co-owners, it is conceded, were entitled to use the ditch only for the purpose of conveying surplus waters, from which it follows that if there were no surplus therein, they had no right to remove the board which occasioned the injury to plaintiffs. It was certainly not incumbent upon plaintiffs, whose rights were first and superior to defendant, to see that sufficient water was flowing in the canal to supply defendant’s needs, for, their rights being first, it necessarily devolved upon defendant to see that the desired surplus was in the canal, and it became his duty, subject to the qualifications to follow, to provide therefor, before lowering his head gate to let such surplus pass through his premises. 4. Under the agreement with plaintiffs’ predecessors in interest, plaintiffs were, and are tenants in common in the company ditch and dam at its source with Dalton and others, succeeding to the original interests, making each responsible in proportion to his interest therein, for the maintenance and repair of the dam and ditch, and in case of default of one or „ more the other has a right to make such repairs, for which the defaulting party becomes liable for his pro rata; but such failure by plaintiffs, if any, did not justify defendant, under the law, in making up the loss thus occasioned, by draw — 604 — ing off the water from plaintiffs’ division box. See Moss v. Rose, 27 Or. 595 (41 Pac. 666: 50 Am. St. Rep. 748). 5. When, therefore, he removed the board, causing the depletion complained of, without making provision for an additional supply of water in the ditch to make up the deficiency, he necessarily invaded plaintiffs’ rights to their injury, of which they were entitled to complain. This was as much as an encroachment upon plaintiffs’ rights as if he had tapped plaintiffs’ ditch below the point of diversion. Had the company ditch been partitioned, so that plaintiffs’ so-called “one foot” in width of water would have flowed separately and apart from the waters in the adjacent canal, it would certainly not be urged that Dalton would have the right, in the event of a shortage, to open this partition; this, however, was not the method pursued. The waters claimed by each were allowed to mingle, and were divided at the point above indicated. The division box, therefore, constituted the partition, and it was incumbent upon defendant, in the use of his surplus, so to adjust it as not to interfere with plaintiffs’ use, so long as plaintiffs’ use and manner of diversion were reasonable. 6. The method pursued by plaintiffs appears to have been for the purpose of determining when they were receiving their quota of water, for the court had ruled (although not as against them, but as against defendant and his co-owners) that Kelsey was entitled to the quantity that would flow through the four-foot aperture. When, therefore, it is disclosed that the quantity was of the same depth across the eight-foot box, and within the manner designated by the commissioner appointed by the court, it becomes clear that the one-half awarded Kelsey, and the one foot, or one-eighth, owned by plaintiffs, would not have flowed through this opening, without an additional obstruction being placed in defendant’s aperture at the head gate. It is. accordingly immaterial, — 605 — so far as defendant is concerned, whether such obstruction was placed there for the purpose of increasing the flow on Kelsey’s side of the box, or for the purpose of running the additional quantity through the Carnes box, eight or ten feet above it. In fact the latter method would seem to be the more convenient manner of distributing the water, for when the supply was adequate for the demands of all, it would be left of uniform depth across the entire width of the head gate, and require only such additional flow through the ditch above as would furnish the increased quantity necessary to fill the Carnes box. The question then arises whether Kelsey was a necessary party. There is no dispute between Kelsey and plaintiffs as to the quantity to which plaintiffs are entitled. It is conceded by all, including Kelsey, that plaintiffs were entitled to one-eighth of the entire flow, and Kelsey, insisting only that it be diverted to plaintiffs in the manner adopted, in no way attempted to interfere with plaintiffs’ use, but, on the other hand, endeavored to aid him in acquiring the supply required. He might properly have been made a party, but it cannot, under the record, be held that he is a necessary party, for, as indicated, a determination of the rights between plaintiff and Kelsey is not essential to the solution of the difficulty between Dalton and the Carnes. Section 41, B. & C. Comp. The only interference that plaintiffs were subjected to was by Dalton, hence it was not required that he make any one else a party defendant by reason of the trespass complained of. 7. It is well settled that one tenant in common in a ditch or water right may institute a suit for unlawful' interference therein by another tenant (Moss v. Rose, 27 Or. 595: 41 Pac. 666: 50 Am. St. Rep. 743), and, as stated by the court in Gould v. Stafford, 77 Cal. at page 67 (18 Pac. at page 879): “Evidence that persons other than defendant also diverted water from the stream — 606 — was admissible only on the issue as to the amount of damages. If defendant’s diversion of water was wrongful, he could have no defense as against the injunction in the fact that others were guilty of a similar wrong, and evidence offered to prove the latter fact would be irrelevant and inadmissible. And as plaintiff waived all claim to damages (except nominal), we think that it was error to admit evidence of diversions of water by third parties.” The same case was later before that Supreme Court on appeal. Gould, v. Stafford, 91 Cal. 146 (27 Pac. 543: Gould v. Stafford, 101 Cal. 32 (35 Pac. 429). At the retrials the pleadings were amended and the cause heard under new issues, and while the results differ, the court adheres to the rule first announced on this point. To the same effect, Wiel, Water Rights (2 ed.) § 196; Lakeside Ditch Co. v. Crane, 80 Cal. 181, 186 (22 Pac. 76). See, also, note to Barnard v. Shirley, 41 L. R. A. 758, where authorities considering this principle are collated. 8. It is also argued that since defendant concedes plaintiffs’ prior right, and manifests no intention of continuing the interruption, the suit cannot be maintained. But it is clearly established that he did insist upon the right to deplete the flow in the manner complained of, and in his answer prays that his rights therein be adjudicated, under which circumstances it is fully settled that a suit is maintainable. Section 394, B. & C. Comp.; Jones v. Conn, 39 Or. 30, 47 (64 Pac. 855: 65 Pac. 1068: 87 Am. St. Rep. 634: 54 L. R. A. 630); Hough v. Porter, 51 Or. 318, 372 (95 Pac. 732: 98 Pac. 1083: 102 Pac. 728); Whited v. Cavin, 55 Or. 98 (105 Pac. 396, 401). The same point was urged in the "briefs, and at the oral argument, but not deemed important in Seaward v. Pacific Live Stock Co., 49 Or. 157 (88 Pac. 963), and Williams v. Altnow, 51 Or. 275 (95 Pac. 200: 97 Pac. 539). It follows that the decree dismissing the suit must be reversed, and one entered enjoining defendant from — 607 — interfering with the flow of one-eighth the carrying capacity of the company ditch to and through the aperture provided by plaintiffs for that purpose. And it appearing important that the rights of the parties hereto should be adjudicated, in the benefits of which each must share, and that defendant was probably acting within what he believed to be his rights, the costs allowed defendant in the circuit court will not be disturbed; plaintiffs to have their costs on appeal. Reversed. Mr. Justice Eakin, having at circuit court tried the former suit involving this ditch, took no part in this decision.