North Powder Milling & Mercantile Co. v. Pacific Fruit Express Co.

McBRIDE, J. 1. Without going into a detailed recital of the evidence, it suffices to say that it fails to show satisfactorily that defendant’s predecessors in interest assisted in the construction or maintenance of the ditch in question, or that there was ever any agreement between them, or defendant, and plaintiff’s predecessors in interest that defendant should use the ditch for the diversion of the 2.5 second-feet of water which defendant’s predecessor had appropriated for the purpose of filling his ice-pond. The evidence does indicate that surplus water escaping through the spillway near the ice-pond was habitually conducted by defendant into its pond for the purpose of filling it, and that when the mill was not running defendant sometimes but not frequently obstructed the ditch below the spillway and secured thereby a large flow — 24 — ■of the water in the ditch to be diverted through the spillway into its ice-pond; but this diversion was never made under a claim of right and never rose above the dignity of a mere temporary license to use that method of filling the pond with water which was -useless to the plaintiff. The evidence is not sufficiently strong to establish a claim of an easement in the ditch or a claim by adverse user. The Circuit ■Court so found, and we think the finding is justified. .In fact, no easement, license or adverse user is formally pleaded in the answer. 2. The defendant claims joint ownership by reason of joint construction and maintenance, and an adjudicated right in the ditch by reason of the findings of the water board and the decree rendered by the Circuit Court in the adjudication of the water rights pertaining to the North Powder River. The decision of this question is rendered difficult not only on account of the important legal points involved in the -construction of certain provisions of the water code, but on account of the obscurity of the findings and decree of the court as to what rights were adjudicated to Lun, defendant’s predecessor in interest. The intent of the findings or decree can perhaps be best understood by reading the same in the light of the claims made before the water board by the respective parties. Lun’s statement of claim and his testimony in support thereof are as follows: “Q. Do you claim a right to any of the waters nf-or any of its tributaries? “A. Yes. ' “Q. State whether water is taken from the main stream, or a tributary thereof. If from a tributary, .give its name. “A. Water is taken from the main stream. “Q. What is the nature of the use on which your «claim is based? — 25 — “A. Irrigation, domestic* stock water and for natural ice-making. “Q. Upon what is your claim based? “A. Appropriation, diversion and beneficial use,, and riparian ownership. “Q. State the date of initiation of the water right which you claim to own. “A. 1870, by predecessor. “Q. State the date when water was first used for irrigation or other beneficial purpose. “A. 1870, by N. Tarter, a predecessor. “Q. State the means of utilizing such water. If diverted through a ditch, give its name. “A. By dams, ditches, laterals, and a ditch known as Harlan ditch, from which ditch the southeast quarter of the northwest quarter of section twenty-seven,, south of range thirty-nine east of the Willamette' Meridian has been irrigated from the year 1884 until present time, and I also irrigate from the mill-race. ‘ ‘ Q. Are you the owner of said ditch or works ? If not, state your proportionate interest therein. “A. I own two thirds of the Harlan ditch and all" of a ditch three feet wide and two feet deep taken out of the main stream in the southeast quarter of section twenty-eight, in the year 1891. “Q. State the date of beginning construction. “A. Ditch, 1870; ice-pond, 1886.” Upon this there appears a finding by the board,, which finding was adopted by the court, as follows: “That in the year 1886, said defendant [claimant! Andrew Lun appropriated the waters of said North-Powder River for ice-making purposes, by diverting-the same into and through a ditch and thence into the mill-race of the North Powder Milling & Mercantile Company, and diversion from said mill-race into and through a ditch to the ice-pond of said claimant; that said water is also diverted from the channel of said river into a reservoir and thence into said ice-pond.” — 26 — The decree of the Circuit Court in that adjudication reads thus: “That said findings and modified order and determination of the said board of control [state water board] are here now made the findings and order of determination of the relative rights of all claimants of, in and to the waters of North Powder River and its tributaries, and for the purpose of definitely fixing and settling the amount of water to which each of said users is entitled with the date of priority, including the ditch through which the same is diverted and the lands upon which the same has been used, the tabulated statement made by the said board of control [state water board] and filed and submitted to the court as a part of their order of determination, and as modified by this court and the said Supreme Court is here now adopted and approved and is made part of this decree as follows * * ” The tabulation referred to, so far as it concerned Lun’s right, is as follows: “Name and P. O. address of appropriator: Andrew O. Lwn. Date of rel. priority: 1886. Amt. Sec. Ft., 2.50. No. ac.: None. Use: Ice-making Oct. 15 to Mar. 15. Name of ditch and interest: Small ditches. Description of land or place of use: ...... Ice-ponds.” The finding, as will be noted, is entirely outside of anything in Lun’s claim in respect to the manner of his obtaining water for his ice-pond. In his claim it is asserted that he takes the water for his ice-poncl from the main stream. In stating his means of utilizing his appropriation he says that it is done by “dams, ditches, laterals and a ditch known as the Harlan ditch,” and adds, “and I also irrigate from the mill-race.” In answer concerning his ownership — 27 — of ditches he states: “I own two thirds of the Harlan ditch and all of a ditch three feet wide and two feet deep taken out of the main stream in the southeast quarter of section 28 in 1891.” There is no ditch specified in Lun’s claim or testimony taking water from the North Powder Biver and thence into the mill-race of the North Powder Milling and Mercantile Company. How this finding came to be made, in view of the proof, is a mystery; and there is no finding as to Lun’s right or interest in the mill-race or the nature or extent of his use of it. His only claim is comprised in the one sentence, “I also irrigate from the mill-race, ’ ’ a declaration not at variance with plaintiff’s contention that Lun used the waste water from its spillway when it turned the same through the spillway in reducing the amount flowing to its mill, with the exception of temporary incursions mostly since the adjudication above mentioned, and to which the plaintiff is now objecting. It will be noted also that in his claim and proof before the water board Lun did not assert any ownership, in the mill company’s ditch, and although he was asked to state his interest in the ditches by which he utilized his appropriation he expressly enumerated the Harlan ditch and another ditch not connected with the matters here in controversy. Nor is there in the decree itself any adjudication that defendant, Lun’s successor, has any interest in the mill ditch or any right to its use for carrying his appropriation of water to the vicinity of its ice-pond. We have merely a finding not based upon claim or substantiated by testimony. A finding not followed by a decree to put it into effect is like faith without works, “dead being alone.” The decree establishes only the order regarding Lun’s — 28 — priority to an appropriation of 2.5 second-feet of water for ice-making purposes, the same to be used through small ditches. It does not pretend to settle the ownership of any particular ditch or right to use the same. Indeed, it may well be doubted whether the jurisdiction of the water board goes to the extent, of authorizing it to settle controversies as to the ownership of ditches: Oppenlander v. Ditch Co., 18 Colo, 142 (31 Pac. 854); Putnam v. Curtis, 7 Colo. App. 437 (43 Pac. 1056); Hallett v. Carpenter, 37 Colo. 30 (86 Pac. 317). But, conceding that it has such jurisdiction, it has not so decreed in the instance now being considered, and it is unnecessary to follow that branch of the discussion. Since no right to use plaintiff’s ditch was adjudicated to defendant by the decree establishing the order of the water board, it follows that the water-master had no right to permit defendant to take water" from plaintiff’s ditch at any time. Indeed, that official testifies that he did not go beyond what would appear to be his legitimate authority, namely, to permit defendant to take its 2.5 second-feet of water while the mill was closed down, without designating the means by which it might be conveyed. However, it is evident that his permission under the circumstances-could reasonably be construed only as a permission to-take it from plaintiff’s ditch. 3. The water-master was not a necessary party to this suit. Counsel for defendant cite Nault v. Palmer, 96 Or. 538 (190 Pac. 346), as being favorable to their contention in this regard, but no question as to the ownership of ditches or the effect of an adjudication upon that subject was there involved. The decree in that case was definite and certain as to the amount of each appropriation and as to the channels through which the same should be applied, and the only conten — 29 — tion was that the water-master had permitted the defendants to use their appropriation in such a manner and at sneh a time as virtually to destroy the priority .given plaintiff by the decree. Here the decree gave defendant no right to use the mill-race as a conduit for the water required to fill its ice-pond, and the water-master was without authority to go beyond the decree and give defendant authority to enter upon a ditch owned exclusively by plaintiff and interfere with plaintiff’s appliances therein for the purpose of satisfying defendant’s appropriation of the waters of the river. If done against plaintiff’s wishes, it would be a trespass not only on the part of the defendant but also the officer who assumed to give it permission to invade plaintiff’s ditch. It is in evidence that before the completion of the new dam erected by plaintiff, • defendant conducted some water from the river by means of a ditch built by Lun, making the diversion immediately below and near plaintiff’s ditch, and that since that time a pumping plant for the purpose of filling the ice-pond by forcing water from plaintiff’s tail-race has been installed and used by defendant. From aught that appears in the testimony, both of these methods are still available. It does not stand to reason that if Lun and defendant were claiming that they had a legal right to use plaintiff’s ditch for the purpose of filling their pond, they would ever have resorted to other and perhaps more expensive methods. If they had believed that they had the legal right to employ the inexpensive process of gravity to bring their water to the pond, they would not have installed an expensive pumping engine and gone to the additional expense of an engineer to run it. The claim of an easement in the ditch is evidently an afterthought, prob — 30 — ably suggested by tbe inconsiderate findings which somehow crept into the record of the water board. 4. It is contended that the nature of the injury complained of is so small and the alleged interferences so infrequent that they may be redressed by an action for damages, and that a resort to equity is unnecessary. It is true that while several interferences with plaintiff’s appliances are in evidence, there is but one which is shown to have occasioned very serious injury, although in the nature of things each of them was calculated to produce some injury by interrupting the manufacture of flour and causing a deterioration of quality where it was manufactured under conditions produced by an insufficient supply of water. But the defendant claims the right to enter plaintiff’s ditch and tamper with its appliances, not only at present but in the future, which in our view is a claim of right to commit continuing and successive trespasses on plaintiff’s property. Under such circumstances it is hornbook law that the aid of 'equity may be invoked. The decree of the Circuit Court is affirmed. Affirmed.