Tyler v. Obiague

BURNETT, J. The predecessor of the defendants in title was W. B. Parker, who is a brother of Hattie May Tyler and brother-in-law of the other plaintiff, S. F. Tyler. Admittedly, Parker put his dam into Cote Slough and dug the first ditch before the Tylers appeared on the scene. The plaintiffs claim nothing [61] but tbe right to use the flood waters that come upon their premises. Parker was using these flood waters for irrigation purposes prior to the time the Tylers began to irrigate. This was accomplished in part by building small dikes or levees across the general course of the swales, so as to cause the water to spread over the ground. It appears clearly by the testimony that after Parker had plowed some further extensions of his ditch to his eastern boundary he gave the Tylers permission to scoop out the ditch for the purpose of more quickly conveying the flood waters to their land than it would come down by the swales. Parker is not disputed in his testimony that this was only to apply to the flood waters and that, so far as the water diverted from Cote Slough by means of the dam was concerned, he had a right to put into the connecting ditch such obstructions as would enable him to cause the water to spread out over his own land. It thus appears that all the plaintiffs have is a right to use the surplus remaining after the lands of the defendants are irrigáted, which flows on past those tracts to and upon the lands of the Tylers. The plaintiffs did not acquire any right whatever in the dam in Cote Slough, or to the ditch originally constructed by Parker, and all they secured in the connecting ditch was the right to have the flood waters flow through it. When they subsided and the coming of the water from Cote Slough depended upon the dam, the plaintiffs had no further right to any of the artificial means of diverting the water. As taught in Hill v. American Land & Livestock Co., 82 Or. 202 (161 Pac. 403), a lower appropriator has no right to compel one who has taken out water above him to maintain an excessive use of water so that the former may get the benefit of the surplus. This is [62] what the plaintiffs are plainly seeking to accomplish and what the decree of the Circuit Court allows them to do. The testimony of Tyler himself is that all he claims is the right to use the surplus flood waters after they have flowed upon his lands. What Parker gave him was evidently a mere license for his accommodation and conferred no privilege affecting anything more than the flood waters. The testimony upon which the defendants claim damage for interference with their check dams is very meager and, in our judgment, not sufficient for us to form an intelligent estimate of the amount of damage. Upon consideration of the whole testimony and the record in the case, we are of the opinion that the Circuit Court was in error and that a decree'should be rendered here, reversing that of the Circuit Court and declaring the defendants to be the owners of the dam in Cote Slough and the ditch leading therefrom and across their entire premises; and that they have a right to divert the water therefrom and cause it to spread over their grounds by means of such dikes and levees as may acomplish the purpose, provided, however, that they do not prevent the surplus flood water from flowing upon the lands of the plaintiffs; and also subject to the condition that during the flood season while the water overflows the hanks of Cote Slough independent of the dam, the plaintiffs shall have the free use of the connecting ditch hereinbefore mentioned, for the conduct of flood waters upon their lands. The defendants are entitled to the costs and disbursements in this court, but neither party shall .recover other costs or disbursements. Reversed. Decree Rendered. Bean, Benson and Harris, JJ., concur.