Hill v. American Land & Livestock Co.

Mr. Justice Burnett delivered the opinion of the court. 1. The testimony shows that the Pacific Livestock Company, for convenience called the defendant, deraigned title from one John Porter, who in turn had it from the United States government by virtue of homestead entry, which was made by him on April 23, 1888, resulting in a patent dated June 13, 1891. This renders it subject to the act of Congress of March 3, 1877, commonly known as the “Desert Land Act,” — 207 — which provided that all surplus water over and above the actual appropriation and use for reclamation of desert land under the act, “together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights * * Act Cong. 1877, c. 107 (19 Stat. U. S. 377, 6 Fed. Stats. Ann. 392, U. S. Comp. Stats. 1901, p. 1548). This provision is thus construed by this court in Hough v. Porter, 51 Or. 318, 404 (98 Pac. 1083, at 1097): “The language used in this act was clearly intended to change the rule respecting the right of riparians to the use of water for irrigation, mining and power purposes; but, as in the last case cited, it has its limits. It does not go so far as to affect the rights originally giving rise to the doctrine of riparian rights; that is, for domestic use, including the watering of domestic animals and such stock as may be essential to the sustenance of the owners of lands adjacent to the streams or other bodies of water. ’ ’ Thus it is made plain that riparian rights are not the same in essential particulars as the common-law privilege thus designated. In the arid and semi-arid regions of the west the principal thing is the beneficial use of water as contrasted with its mere presence under the old common-law doctrine that a person whose lands abutted upon a stream was entitled to have it flow past his premises as it was naturally wont to do undiminished in quantity except for domestic purposes and unimpaired in quality. The rule had its rise in England, where irrigation was at the time practically unknown. The modification embodied in the act of Congress referred to and in the general legislation of the semi-arid western states is founded upon the neees — 208 — sity of the situation and the principle of making the water do the greatest good to the greatest number; It may well be doubted, therefore, whether the allegation of the defendant’s answer, to the effect that riparian rights attach to its lands by virtue of the creek running through it, is more than a conclusion of law, or presents any obstacle to the prior appropriation of other parties taking advantage of the reservation annexed by the government to its lands, permitting its appropriation by the first comer of the waters flowing thereon. If other persons, operating under the Desert Land Act had previously appropriated all the water of the stream, it seems that the riparian rights as known at common law, attaching to the land in question in favor of a subsequent taker, would be negligible. Because public land since 1877 bordered a stream, it does not necessarily follow that one holding it by subsequent title can defeat or diminish a prior appropriation made under the act. To work out such a result something more must be shown than mere abuttal upon the stream bed. 2. All the testimony affecting the defendant appears in the abstract. John C. Beatty, a foreman for many years for the defendant, testified that the only water that goes upon the land in question is seepage water from the Frank Adrian place next above it on the stream. He says that a successor of his plowed some in an old ditch on the defendant’s land, but that he never saw any water in it. It seems it was not connected directly or indirectly with Trout Creek. He is clear in his statement that the only water going upon the place, aside from the stream, is seepage from the place above, and that the only use to which the property in question was put was for pastura ge, or to hold cattle there three or four or five days during the rodeo. — 209 — There is utterly no testimony to support the allegation that the defendant entered upon the creek and by means of ditches, dams and other works appropriated water therefrom. The finding of fact quoted is amply supported by the testimony. 3. The complaint of the defendant is that in prescribing the amount of water which Adrian was entitled to use, no provision was made for continuing the seepage upon which the defendant depends for moisture upon its land. The principle governing such a case is thus enunciated in 2 Kinney, Irrigation and Water Eights (2 ed.), Section 1115: “In a previous chapter upon the subject of the economic use and the suppression of waste we endeavored to show that in all enterprises for the use of water there is more or less of the water lost to the appropriators from what is called necessary waste. This is the water which escapes from the ditches, canals or other works, and which cannot be avoided by the ordinary precautions commonly used in the construction' of the works. And while it is the duty of the appropriator to use ordinary methods to prevent this waste,, he is not compelled, under the law, to use extraordinary methods. However, as ‘water is a movable, wandering thing,’ under the best methods known to man, some of the water will escape. To this necessarily lost water, while a temporary use may be made of it by anyone who may capture it, no permanent right can be acquired so as to compel the continuance of the-discharge or loss.” The modern doctrine in the western states is that no-person has a right to use more water under his appropriation than can be beneficially applied to some useful purpose. If, therefore, Adrian violated this rule by his excessive use of the water, he had no title to the surplus, and neither could the defendant acquire any ownership therein. The latter would be in no — 210 — better position than the receiver of stolen goods. It cannot call upon the court to compel Adrian to continue in his wrongful and prodigal use of the water so that the defendant may be benefited by the resulting seepage. The allusion to seepage in the finding of the court already quoted manifestly refers to that unavoidable escape of water referred to in the excerpt from the writings of Kinney. The evidence does not disclose any impairment of riparian rights as modified by the Desert Land Act. Under the finding of fact the -decree might have been made more specifically stringent upon the defendant. Its rights were not prejudiced by the conclusion of the court. 4. It was also charged by the answer that there was a misjoinder of causes of action in that each appropriator was an owner in severalty, and could not join with others in this class of litigation; but that point has been adversely determined by this court in applying Section 393, L. O. L., reading thus: “All persons having an interest in the subject of the suit, and in obtaining the relief demanded, may be .joined as plaintiffs, except as in this title otherwise provided. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. ’ ’ The rule is established in the following precedents: Williams v. Altnow, 51 Or. 275 (95 Pac. 200, 97 Pac. 539); Hough v. Porter, 51 Or. 318, 404 (98 Pac. 1083, 1097); Whited v. Cavin, 55 Or. 98 (105 Pac. 396); Lockhart v. Ferrey, 59 Or. 179 (115 Pac. 431). The thing in controversy is the whole mobile flowage of the stream. At the outset, under the very nature of things, no one can tell what particular drop of water is his own. It is the use of an aliquot part of this — 211 — amount which, is in question; and no adequate determination of the same can be had without the presence of all who are interested in the entire flowage of the stream. Error is not apparent in the decree. It is affirmed. Affirmed.