The daily journal. (Salem, Or.) 1899-1903, 1900-12-27
SALEM FIGURING
CASE DECIDED
Judge Boise Hands Down His
Decision.
In the Great Controversy
Over Santiam Ditch
Water Rights

OItth bDcH NNo BiduVOu w ViiO oV'''S W
Oregon under grant from the Villa
mette Wooden Manufacturing Company
in the year 1895, at the time just prior
to the building Of the Oregon State
Penitentiary.
The Salem FIGURING Mills Co., is the
successor in interest of the Willamette
Woolen Manufacturing Company, which
last mentioned company was incorporat-
ed by the Territorial Legislature of Ore.
gon inthe year 1856, for the purpose of
bringing water from the Santiam River
TO Salem, following the channel Of Mill
Greek as far as practicable, to develope
hydraulic powers and TO promote manu-.
featuring interests in and near Salem.
The Willamette Woolen Manufactur-
ing Co., in pursuance of its purpose,
introduced water from the Santiam river
into Salem, purchased tracts of land
along Mill creek, constructedia ditch from
Waller dam to the Willamette river and
developed in Salem what is known as
the Six Powers, three of which are
situated on the ditch or race from Waller
dam to the Willamette river and these
are located ON the north side of Salem
on Mill creek below Waller dam.
When the state contemplated building
the penitentiary near Salem the
Willamette Woolen Manufacturing Co,
granted as gift to the state permission
TO use all the water in Mill creek, as
augmented by flow from the Santiam
river, as a water power, but all OF said
water was to be returned TO Mill creek
on the land OF M, J.. Savage, except such
an amount Of water as could be pumped
through pipe not to exceed two inches
in diameter. In the latter part Of 1895
the Salem FIGURING Mills Co. discovered
that the state officers we're diverting at
the penitentiary more water than they
were entitled 10 under the aforesaid
grant, at which time they were pumping
through ten inch suction pipe.
Early in 1896 the Salem FIGURING
Mills Co. demonstrated with the state
officers concerning the diversion OF such
an amount of water. The state officers
in the face of such remonstrance erected
q larger pumping plant consisting of two
pumps each taxing water through Ten
inch suction pipe, All friendly overtures
being disregarded by the state officers.
The Salem FIGURING Mills Co. filed its
complaint in 1896 asking for an in
junction to retain the state officers from
taking more water from Mill creek than
they are entitled TO under the grant OF
1865, for the reason that ii the state
officers may divert greater amount
of water than is specified in the
grant of 1865, there would he no limit TO
what they might take until they had
taken il all. The state officers answered
this complaint by alleging that there was
enough water in Mill creek naturally to
supply all their needs, without taking
any OF the water introduced from the
Santiam river, and further, that NJ. L.
Savage had right to use all OF the water
in Mill creek together with that from
Santiam, and he had granted this right
to the state, aud further, that the state
officers in 1890 made a contract with the
Ditch Company that il the state did the
work in keeping up the ditch fro IN Stay
1 ton, it could have all OF the water il
wanted TO use for any purpose.
The above in brief is a statement of
the facts and contentious OF counsel on
the trial had before Judge Boise of the
equity department of the circuit court
during the past week. Messrs. Williams
and Linthicum and Chas. A. Park ap
peared for the FIGURING Mills Co. John
A. Carson appeared for the state, the
suit having been begun when C. NJ,
ldleman was Attorney General.
Findings Of Judge Boise.
At o'clock this afternoon Judge
Boise handed the clerk his findings in
the case, which are in substance as fol.
lows:
The court finds that the Salem Flour.
ing Mills had, by virtue of the character
OF the Willamette Manufacturing Co.,
the franchises OF which have been ac-
quired by the Salem FIGURING Mills Co.,
and by the various riparian rights ac-
quired by such corporation, the right to
use all the water OF Mill kcreek and the
Santiam water at their mill in Salem,
except so much as can be pumped
through two.inch pipe; that
the state had the right to use all OF such
water as it passed through the premises
Of the state at the penitentiary but we're
obligated to return all of such water to
Mill creek on the lands of the state and
above the plaintiffs water powers. ex-
I cept the two-inches OF water which they
had a right to divert and not return.
The court found that the rights OF
the parties 10 this water were settled
and determined by the deeds Of NJ. l..
Savage and wife 10 the State aud by the
deed Of the Woolen Manufacturing Co.
10 the State
The state cOntended that the plaintiff
has after the flood of 1890 agreed In con.
sideration OF work done by the state 10
enlarge this right. The court found that
the evidence was not sufficient 10 estab.
lish such agreement.
The state also pleaded the statute OF
limitations. The court found that the
state had been using its water in excess
OF the two inches for more than ten years
but found that the plaintiff had no no
/ tice of such use until the last four wears