Blanchard v. Hartley

COSHOW, J. The testimony in this proceeding is unnecessarily voluminous. A great deal of testimony was directed to a notice, which was recorded by Mathias Chapman, who claimed 150 inches of water from the west fork of Williams Creek. It is contended that the notice originally read 250 inches. The only office of this notice is to give notice to the world of the claim of said Chapman. The question of a change in the number of inches is not material. The defendant Hartley made no claim to any of the water for 25 years after the notice was recorded. The successors in interest of said Chapman do not claim to have appropriated the quantity of water mentioned in the notice. As we understand the record, the most claimed now by the successor in interest of the said Chapman, who is the appellant Blanchard, is .79 second-feet, which the state engineer designated as sufficient for irrigating 47 acres. The material question is whether or not the said Chapman and his successors in interest actually appropriated that quantity of water. Nor do we deem the statement in the notice material that the water was being appropriated for milling purposes. It is not disputed that the water used for milling purposes was taken from a ditch other than the one described in the notice and from the opposite side of the stream. Then, again, the water so used for milling purposes was not used later than 1890, some ten years before any right was initiated by the respondent Hartley. Consequently, the statement in the notice, that the water was to be used for irrigating and milling purposes, does not in any way affect 'the respondent Hartley: 1 Wiel, Water Bights in the Western States (3 ed.), §§ 496, 497, and authorities there cited; [312] Union Mill & Mining Co. v. Dangberg, 81 Fed. 73, 117. An excerpt from 2 Kinney on Irrigation & Water Rights (2 ed.), Section 768, is quoted with approval in In re Willow Creek, 74 Or. 592, 637 (144 Pac. 505, 520, 146 Pac. 475), as follows: “The owner may change the use of the water to any other beneficial use, so long as the change does not interfere with the vested rights of others.” One of the principal issues was whether or not the Chapman Ditch was enlarged after the death of Mr. Chapman by Graham and Sutton his successors in interest. It would not be helpful to set out the evidence upon this question. We are convinced by a very careful reading and re-reading of the testimony, and comparing the testimony of the different witnesses relating to this issue, that the ditch was not enlarged as alleged by the contestant Hartley, who is respondent here. The witnesses, who testified on behalf of the appellant Blanchard, were in a better position to know the facts upon that issue, some of whom, in addition to Graham and Sutton, gave direct and positive testimony that the ditch was not enlarged. The testimony of the other witnesses, though doubtless indicating their honest belief, is not convincing. Indeed, the witness Graham was not interested in the result after he sold the land in 1909. He says, positively, that he never enlarged the ditch. The witnesses, Gotcher, Hoxie and Topping, who were all disinterested parties, gave quite satisfactory testimony to the effect that the ditch was not enlarged by Graham or Sutton. The contention of the respondent Hartley is that the ditch was enlarged by Graham in 1908, and later further enlarged by Sutton, who was the successor [313] in interest of Graham. Mr. Topping, who was road supervisor in 1908 and 1909, testified that the ditch was not enlarged in either of those years. Mr. Topping was a disinterested witness and was in a position to know whether or not the ditch was enlarged as contended by the respondent Hartley. The evidence further states that the acreage placed under cultivation by Chapman, during his lifetime, was gradually and constantly increased until his death, which occurred in 1906. The acreage was further increased by Graham and Sutton respectively. There is no doubt that Chapman exercised due diligence in constructing the ditch and applying the water. Mr. Hartley had actual knowledge of the application of the water to the land now belonging to Mr. Blanchard during all of these years. In volume 3, pages 106 and 107 of the testimony, Mr. Hartley testified in the following language: “I knowed this that if I taken it out, they had a right to come in and refuse me” (p. 103). * * ”1 never refused Mr. Chapman.” And in pages 106 to 107, he testified to the effect that he only took the surface water in the creek. We are satisfied from the evidence that Mr. Hartley recognized that Mr. Chapman had the first right to the waters of Williams Creek. No dispute arose about the water until several years after Mr. Chapman died. Even as late as 1910, when Mr. Sutton protested against Mr. Hartley taking the water from Williams Creek to his damage, Mr. Hartley did not dispute Mr. Sutton’s right to water absolutely, but explained his refusal to permit the flow down to the head of Sutton’s ditch by saying in his testimony that Mr. Sutton wanted to take all of the water. Mr. [314] Hartley’s ditch had its head some distance above the head of the Chapman ditch. It must be conceded that Mr. Chapman did not use as high a degree of diligence in clearing his land, applying the water and irrigating it, as he might and should have done. But it must be conceded that he did use as high a degree of diligence, as his neighbors and other people situated as he was during his lifetime, in dealing his land and applying the water thereto. It seems he did clear the land he was placing under cultivation of the stumps and trees. It also appears that Mr. Hartley has not cleared the 39 acres of all the trees, but has left many of them standing in his irrigated tract. The diligence required, under such circumstances, is relative, and we are persuaded, that under the authorities cited and after giving full consideration to the situation of the parties to this appeal, that the original findings of fact and order of determination giving to Sutton, who has been succeeded by the appellant Blanchard, .79 second-feet as a first right for the use of 47 acres in three of the smallest legal subdivisions of the northwest quarter of section 3, township 39 south, range 5 west, with a priority of 1875, and to the respondent Hartley, .65 second-feet as a second right for the 39 acres in the southeast quarter of the northeast quarter of section 4, same township and range, with a priority of 1900, was more nearly correct and equitable than the decree appealed from: Seaweard v. Pacific Livestock Co., 49 Or. 157, 161 (88 Pac. 963); Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472, 60 Am. St. Rep. 777); Smyth v. Neal, 31 Or. 105 (49 Pac. 850); Gardner v. Wright, 49 Or. 609, 627 (91 Pac. 286); Rogers v. Pitt, 129 Fed. 932, 942; 1 Wiel, Water Eights in the Western States (3 [315] ed.), §§ 483, 484, Section 141 and authorities there cited. Another question, which arose during the progress of the trial, is whether or not the respondent Hartley should have a right to apply the water to any acreage excepting the southeast quarter of the northeast quarter of said section 4. It seems that some of the acreage under irrigation along this ditch is included in the southwest quarter of the northeast quarter of said section 4. We are of the opinion that Hartley should not be limited, necessarily, to the southeast quarter of the northeast quarter of said section 4, but that the small portion of the tract under irrigation from his ditch in the other 40 acres should be permitted. The decree appealed from will be modified so as to award to the appellant Blanchard .79 second-feet as a first right with a priority of 1875 for the use of 47 acres in the north half of the northwest quarter and the southwest quarter of the northwest quarter of section 3, township 39 south, range 5 west, and to the respondent .65 second-feet as a second right for the use of 39 acres in the southeast quarter of the northeast quarter and the southwest quarter of the northeast quarter of said section 4 with a priority of 1900. In other respects the decree appealed from is affirmed, neither parties to recover costs in either court. Modified. McBride, C. J., and Burnett and Band, JJ., concur.