East Oregonian : E.O. (Pendleton, OR) 1888-current, 1906-05-01
NO VESTED RIGHTS
NO DAMAGES IN IDAHO
IRRIGATION CASE.
Judge Beatty of Boise, Decides That
There Are No Vested Rights i'm
Streams and That a Settler Who is
Damaged by Diversion of Water
From His Source of Supply Cannot
Recover-Case of Much Interest to
Umatilla County.

An irrigation case has just been set
tied in Idaho, which will be of inter-
est to Umatilla county and eastern
Oregon people. A detailed account
of the trial. cause of action and de-
cision is given by the Boise Capital
News as follows:
In the United States court today.
Judge Beatty filed a written opinion
i'm the case of Henry Schodde VS.. Twin
Falls Land & Water company. in
which the demurrer filed to the COM
plant is sustained, says the Boise
paper.
The action arose over the construc-
ton of the dam across Snake river by
the defendant, the result of which
was that it raised the water in that
stream and destroyed the current
which had operated water wheels
used for elevating water necessary to
irrigate the lands of the complainant.
Schodde owns a tract of 42i acres
of land. on the banks of the Snake
river, about nine miles above the dam
at Twin Falls. He arranged water
wheels. operated by the current, by
which means he elevated sufficient
water to irrigate the land. The dam
raised the water to such an extent
that the water wheels were useless
and the means of irrigation thus de-
stroyed. He brought suit for damages
i'm the sum of $56,550. which. in the
opinion of the court, ''is demanding
far more than the full market value
of any lands in that country. and GER
tainly, if the land is rendered entire
ly worthless, its fair market value is
the most that can be exacted in dam
ages. Such eXtravagant demands do
not play upon any sympathizing chord
in the breast of the court
The defendant demurred to the
complaint. assigning a number of
causes. principal of which was that
it did not state a cause of action. This
admitted that the plaintiff Is entitled
to the use of the water he had appro-
priated for use on his land, but de-
MED that he is entitled to protection
for his water wheels, or that the river
must be left in such a stage of water
that they may be operated as former
ly.
Accustomed as we are in this
western country to the free and al
most unlimited appropriation and use
of any of natures products, and to be
I protected therein under the law that
he who is first in time is first in right,
this proposition at first seems an in
novation. 1t is, however. worthy Of
I the most careful Investigations. 1t
/ is, so far as | am advised, entirely new
and has never been directly discussed
or decided by any court"
After reviewing the conditions pre-
vailing and the contentious of the
/ parties to the action, Judge Beatty
says:
Suppose from a stream of 1000
/ inches a party diverts and uses 100,
and in some way uses the other 900
to divert his 100, could 1t be said
that he has such a reasonable use Of
the 900 as to constitute an appropria-
ton Of It? Or, suppose that when the
entire 1000 inches are running, they
so fill the channel that by a ditch the
can draw off to his land 100 inches,
can he then object to those above
him appropriating and using the
OlHtI JDV luCltSs DtNduo' ~ VIII 81
lower the stream htat his ditch be-
comes useless? This would be such
an unreasonable use OF the 900 inches
as will not be tolerated under the law
of appropriation. In effect, this is
substantially the principle that plaint-
iff is asking to have established"
The opinion concludes: my opinion
is that the plaintiffs claim, that he
is entitled to have the river remain
in the condition he found 1t, cannot
be sustained, nor that he Is entitled to
; any damages for any change made in
It; that his claims in this respect is
not vested right. AS this conclusion
may be wrong, and as It is the ques-
ton on which the case must turn, II
should, II possible, be settled before
the parties are put to the expense OF
trial on the merits. 'All the ques-
tions so ably presented by counsel
have been carefully considered, but
It has not been deemed necessary to