Eastern Oregon Live Stock Co. v. Keller

BEAN, J. The testimony supports the finding of the trial court to the effect that the use by the defendants of the water upon their lands did not injure plaintiff or interfere with its rights. The plaintiff assigns that the court erred in not finding that the plaintiff is entitled to the use of the waters claimed by defendants, and not decreeing plaintiff a prior right to such use. Whenever a suit is instituted for an injunction to restrain the use of water, and issues are raised in regard to the relative priority of the rights of parties to the use of waters of a certain stream, the court should in all cases where possible definitely determine the rights of the respective parties and the dates of their appropriation: See Hough v. Porter, 51 Or. 318 (95 Pac. 732); Foster v. Foster, post, p. 355 (213 Pac. 895). Especially should this rule be applied since the water board of the State of Oregon has ceased to function, except by the state engineer, who will probably be unable to adjudicate many of the water rights in the state. However, in this suit there is a general statement on the part of plaintiff in regard to its„ appropriation made by its predecessors in 1890 (which is not questioned by the defendants), and also that all of the waters of Krumbo Creek to which Dry Krumbo, or Little Krumbo, is tributary, are necessary for the irrigation of plaintiff’s land. The number of acres cultivated is not given. The amount of the [260] water used is not designated. The amount of the water in the Blitzen River, Krumbo Creek or Little Krumbo Creek from which plaintiff obtains its supply of water for irrigation is in no way designated in the record, and the record in this case is not sufficient to determine definitely the rights of the respective parties. There is a controversy as to whether or not the canyon from which the defendants obtain the water which flows down through it from melting snow, and is not a regular perennial stream, is, strictly speaking, tributary to Little Krumbo Creek. From the testimony of the plaintiff’s witness as quoted in its brief at page 5, “there are few high water years when there is a surplus of water,” meaning over and above the amount required by plaintiff. Defendants also state that there is no water for their use from the canyon mentioned during every year. The testimony shows that defendants use the water early in the season of the year before the plaintiff commences to irrigate to any considerable extent. The water used by defendants is a kind of surface water, and is not taken from any regular stream. It appears the surveyor for the plaintiff went to the ditch of defendant, about a mile from its head, and as it was in the water shed of the Little Krmnbo, he evidently concluded that the ditch was taken out of that creek. Hence this suit. The testimony does not show that the defendants constructed a ditch on plaintiff’s land as alleged in the complaint. The decree of the lower court is affirmed. Aeeirmed. Mr. Justice Rand took no part in the consideration of this case.