Allen v. Magill

BURNETT, J. The allegations quoted from the complaint constitute all of the matter upon which the plaintiff in that pleading predicates his right to the water in question. 1. We will first determine the validity of the general demurrer to the complaint. The contention of the defendant is that the plaintiff must show in his complaint not only that he took the water and applied it to a useful purpose, but also that the place of appropriation was upon unoccupied land belonging to the United States. The argument of the defendants seems to be that merely to say that the plaintiff appropriated the water is but to state a conclusion of law, and that fácts should be averred from which the court could draw the conclusion that there had been an appropriation; in other words, that all of the elements of a valid appropriation should be alleged. It is true that there can be no valid appropriation unless the water is subject thereto and is not only diverted, but also applied to a useful pur — 616 — pose; and further, that no appropriation can he predicated of excess in the use of water beyond what is reasonably necessary for the useful purpose in view. Like ownership, appropriation is an ultimate fact: 17 Ency. Pl. & Pr. 328. A discussion of pleading an ultimate fact is found in Oregon Home Builders v. Montgomery Investment Company, 94 Or. 349 (184 Pac. 487), in an opinion by Mr. Justice Harris. In Ely v. New Mexico etc. Ry. Co., 129 U. S. 291 (32 L. Ed. 688, 9 Sup. Ct. Rep. 293, see, also, Rose’s U. S. Notes), we find the statement of the principle in the syllabus, reading thus: “An allegation, in ordinary and concise terms, of the ultimate fact that the plaintiff is the owner in fee, is sufficient without setting out matters in evidence, or what have sometimes been called probative facts, which go to establish that ultimate fact.” In Hague v. Nephi Irrigation Company, 16 Utah, 421 (52 Pac. 765, 67 Am. St. Rep. 634, 41 L. R. A. 311), applying particularly to the appropriation of water, the precept is thus stated in the syllabus: “Where the allegations of a complaint in a suit brought to determine the plaintiff’s right to the use of water of a stream state, in general terms, a cause of actioA by alleging clearly and distinctly ownership, invasion of rights, and injury, without distinct allegations of how plaintiff became the owner of .a water right, whether by appropriation, adverse user, or purchase, plaintiff’s title can be shown by proof, and the allegations will be sufficient to withstand a general demurrer.” An analogy may be drawn from Rogers v. Miller, 13 Wash. 82 (42 Pac. 525, 52 Am. St. Rep. 20), where it is held that in an action to quiet title an allegation of ownership in fee admits proof of any title, including that acquired by adverse possession. On the — 617 — question of stating ownership as an ultimate fact, see, also, Turner v. White, 73 Cal. 299 (14 Pac. 794); Heeser v. Miller, 77 Cal. 192 (19 Pac. 375); Souter v. Maguire, 78 Cal. 543 (21 Pac. 183); Johnson v. Vance, 86 Cal. 128 (24 Pac. 863); Fudickar v. East Riverside Irr. Dist., 109 Cal. 29 (41 Pac. 1024); Hanscom v. Hinman, 30 Mich. 419. There are cases in Colorado, such as Farmers’ High Line etc. Co. v. Southworth, 13 Colo. 111 (21 Pac. 1028, 4 L. R. A. 767), and Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421 (94 Pac. 339, 15 L. R. A. (N. S.) 238), which hold that: “In pleading an appropriation of water, the acts constituting such appropriation must be stated and not merely legal conclusions, so that, upon an inspection of such pleading it can be determined whether or not the facts stated constitute, in law, a valid appropriation of water for a beneficial use. ’ ’ The pleadings in these cases state that the water had been diverted, but fail to aver that it had been applied to any useful purpose, and on account of such omission the court held that the complaint stated merely conclusions of law. 2. That objection is met in the instant case by the allegations to the effect that the water was used for the necessary irrigation of the lands of the plaintiff, making the same more valuable for pasturage and crops which cannot be raised without irrigation. In Porter v. Pettingill, 57 Or. 247 (110 Pac. 393), Mr. Justice Eakin writing the opinion, it was held that: “A complaint to determine the priority of irrigation water rights is insufficient where it does not * * show that any particular land needed irrigation, does not specify the amount of water diverted nor the amount needed to the acre, or for any specific land, and does not show how much water plaintiffs’ gran — 618 — tors acquired a right to use; an allegation that plaintiffs were entitled to all the water in a creek during the dry season being too indefinite.” 3. In this case, although the plaintiff claims all of the water in the stream in question, yet the amount thereof is alleged. The lands to which it is applied are described with particularity, and it is shown, in substance, that even the amount mentioned is not sufficient for proper irrigation of the land. The record shows that all of the lands involved in this suit were acquired from the United States after the passage of the Desert Land Act of March 3, 1877, Chapter 107 (19 Stats, at L. 377, U. S. Comp. Stats., §§ 4674-4678, 8 Fed. Stats. Ann. (2ed.), pp. 692-696). In Hough v. Porter, 51 Or. 318, 406 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728), Mr. Commissioner King, discussing the congressional legislation mentioned, reaches the following conclusion: “Congress could reasonably presume that, if an appropriation were desired for the purposes mentioned in the act, some steps would be taken manifesting such intent, and that, if the owner is not the first to move in that direction, the person making an application thereof to a beneficial use within a reasonable time ought to be rewarded for his diligence, and he is entitled to have his rights in that respect recognized and protected. For this reason the settler who has acquired title to the land through which any stream may flow, took it subject to the rights of the person who has or who may subsequently make the first use of such stream for the purposes enumerated in the act, excepting only as to the natural wants and needs of such settler.” 4. The course of reasoning seems to be that, under the Desert Land Act, Congress has divorced the water from the public domain through which it flows, and as to all surplus water over and above what the — 619 — settler may divert upon Ms land, for a useful purpose within the purview of the statute, has declared that it “shall remain and be free for the appropriation and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights.” The conclusion suggested is that as to all land claimed by a settler after the passage of the Desert Land Act, he takes it thus separated from the waters flowing thereon, so that anyone thereafter who first appropriates the water will take it independent of his rights thereto, beyond his mere domestic use. This, however, does not give anyone a right to go upon the lands of the settler without his permission, to divert the waters flowing through the same. 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 water: 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 withotit right in the first instance, unless his possession has been continued adversely long enough to give him title by prescription. 5. We conclude that the allegations of the complaint are sufficient as against general demurrer to allow the plaintiff to prove an appropriation of the — 620 — water as against the general issue. Neither is the new matter in the reply a departure from the complaint. In support of his allegation of appropriation, the plaintiff can show either that he entered upon unoccupied government land and found the water subject to appropriation under the Desert Land Act, and from that point diverted it to his own premises, in which instance he would be relying upon the promise given by the then riparian owner, the government of the United States, expressed in that legislation; or. he could also show that by the permission of a private riparian owner he had a similar license to appropriate, the water; or, finally, he could show that, although the owner of the bank washed by the public waters had not given his consent to divert the stream, yet he had gone upon that land and had taken out the water and maintained his adverse possession thereof for the prescriptive period. All this under the best considered authorities can be shown under the general allegation of appropriation and application to a specified useful purpose, ’in the light of this rule the new matter in the reply alleging adverse possession merely restates in detail what could be proved under the complaint as already framed. In other words, it is not a divergence from, but, rather a strengthening of the complaint, and hence is not amenable to demurrer on the ground of departure: Moores v. Clackamas County, 40 Or. 536 (67 Pac. 662); Goodwin v. Tuttle, 70 Or. 424 (141 Pac. 1120); Mascall v. Murray, 76 Or. 637 (149 Pac. 517, 521). 6. A careful reading of the testimony in the record, considered with the exhibits offered in evidence, convinces us that'for more than twenty years continuously next prior to the commencement of the suit, — 621 — the plaintiff diverted and applied to his lands specified in the complaint all the water of the stream at the point where it enters the south boundary of his land, all without interruption and adversely to all other claimants until the act complained of, the diversion of the water by the defendants, occurring in 1916 and 1917. The uncontradicted testimony of a witness for the plaintiff shows the amount of the water diverted to be 12% miner’s inches, and the testimony abundantly shows that it has been applied upon 15 to 18 acres of plaintiff’s land on the west side of the stream and 50 acres on the east side, besides being used to water domestic animals and for household purposes on the west side. Thus are met all the requisites of appropriation. The water was reserved from the land in a measure by the Desert Land Act and made subject to appropriation. The holders of all of the realty mentioned in the pleadings took with notice of that act. The plaintiff has gained access to that public water. He has at least shown that he has maintained his actual diversion of the water for the useful purpose of irrigation for more than the prescriptive period, adversely to all others, and hence has proved the allegations of his complaint. On the other hand, the showing is ample that by reason of affluent springs below the point of the plaintiff’s diversion, coupled with the run-off of upstream irrigation, the land of the defendant Magill lying downstream from that of the plaintiff has an abundance of water. As to Magill’s holdings south and above the plaintiff’s premises, the grievance complained of consisted of an attempt to apply water to land hitherto unbroken, and hence subordinate to the plaintiff’s appropriation. — 622 — As usual in such cases, the witnesses are not all agreed, but the decision of the learned judge sitting in the original trial, who heard them, saw them and observed their demeanor on the witness-stand, is entitled to our consideration. Under all these circumstances of pleading and evidence, we think the decree of the Circuit Court should' be affirmed. Affirmed.