Pacific Placer Co. v. Sparlin

BEAN, J. It is contended on behalf of appellants, upon this appeal, that the Layton estate is diverting through its ditches an amount of water in excess of that required to carry on its mining operations. It is shown by the testimony that the water in the lower Layton ditch is used for by-wash, or for carrying away the debris from the mine, and not for sluicing. The water carried through the upper ditch is impounded in a reservoir during the night and used for hydraulic mining during the next day. In order to operate the mine it is essential to use all of the water that can be obtained through these ditches, and more could be used if it were available. Testimony upon this point is practically uncontroverted. The testimony supports the findings of the court. [64] It is assigned by appellants that: “The court erred in decreeing to the Estate of J. T. Layton, deceased, the right to the use of any of the waters of Williams Creek or its tributaries for mining purposes, during the irrigation season, or for any period of time other than from October 1st of any year to May 15th of the succeeding year.” 1. It is urged on behalf of appellants that the use of the waters for mining operations should not be curtailed during the winter season when there is a surplus of water, and used therefor during the irrigation season, or in effect the water should not be used for mining purposes later in the year than May 15th. The use of water of the lakes and the running-streams of the State of Oregon for the purpose of developing the mineral resources of the state is declared to be a public and beneficial use and a public necessity, and the right to divert such unappropriated waters is granted by our statute: Section 5789, Or. L. The privilege claimed by the appellants would intrench upon the vested ■ right of the owners of the Layton ditches. However laudable may be the purposes of the appellants, and however great may be their necessity to obtain the waters of Williams Creek for irrigation purposes, it is one of the fundamental principles of our Water Code that “subject to existing rights, all waters within the state may be appropriated for beneficial use,” as provided by the statute and not otherwise. The statute further declares: “but nothing herein contained shall be so construed as to take away or impair the vested right of any person, firm, corporation, or association to any water”: Section 5716, Or. L. [65] The right of a prior appropriate of water is paramount. The use of the water for hydraulic mining by Layton and his successors in interest is shown to be reasonably necessary for the project fairly within contemplation at the time of the appropriation: Andrews v. Donnelly, 59 Or. 138 (116 Pac. 569); Caviness v. La Grande Irr. Co., 60 Or. 410, 430 (119 Pac. 731). 2. The appellants criticise the exceptions filed on behalf of the Layton estate and considered by the Circuit Court. The exceptions are entitled, “In the Circuit Court of Oregon for Jackson County.” It appears they were filed with the state water board, answered by the appellants, and sent to the Circuit Court with the record. We find no objection to this manner of proceeding made at the time of the hearing in the trial court. The parties were heard upon the exceptions. The objection to the informality is now too late. It does not appear that the appellants were misled or injured. Complaint is made by appellants because the Circuit Court awarded the Layton estate “water of the Bast Pork of Williams Creek, through the upper and lower Layton ditches,” instead of confining the use of water from the tributaries or forks of the east fork of Williams Creek, as described in the record of the determination of the water board. The record here does not inform us that any material change in the place of intake was intended or made by the Circuit Court. The map of the Layton ditches mentioned in the testimony is not before us. We have only a printed topographical map of the section of the country in which the ditches are located. We are unable to distinguish any material difference in the [66] two descriptions. It appears tlie water is to be taken to tbe mines by means of the Layton ditches as constructed. After a careful reading of the testimony, and examination of the record, we affirm the decree of the iower court. Affirmed. Burnett, C. J., and Brown, J., concur. Johns, J., resigned after argument.