Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-20
DOhnelly and Daughtrey V. Cuhna
Umatilla County.
Decided, December 12, 1911.

I w oppelldulS, v. Joseph Cub
na' respondent Appeal from the cir
cult court for Umatilla county. Hon.
h. ]. Bean judge. Argued and sub
mitted at Pendleton, November 3,
1911 R. R. Johnson (Carey & Kerr
Harrison Allen, R. R. johnson and
Frederick Steiwer on brief) for ap-
pellants. ]. H. Raley (Raley & Ra-
ley on brle) for respondent. Moore.
]. Modified.
This is a suit to enjoin interfer-
ence with the flow of water 1t is al
legged in the complaint, in effect, that
the plaintiffs, Frank Donnelly and
VIM. H. Daughtrey, own at Echo, Or
egon, grist mill which is operated
by water taken from the Umatilla
river and conducted in race where
by prior appropriation of the water
of that stream was made to the ex-
tent of SO second feet which quantity
has been used in propelling the ma
chinery Of the mill and in irrigating
about so acres of alfalfa land lying
under the race; and that the defen-
dant Joseph Cuhna unlawfully di-
verted the water from the river
above plaintiffs dam that DETECTED
the water into the race thereby pre-
venting the operation of the mill,
The answer denies the material
averments of the complaint and al
leges that defendants predecessors
in title and interest made a prior ap-
preparation of the water of the river,
at place above plaintiffs dam,
whereby 400 inches, miners measure
ment, was diverted and has been con-
stantly used under a claim of right
for more than 10 years prior to the
commencement of this suit adversely
to all persons.
The reply puts in issue the aver
ments of new matter in the answer
and the cause having been tried
findings of fact and of law were made
conformable to the averments of the
answer. except that defendant was
entitled to only $50 inches of the wa
as prior right and decree having
been given in accordance herewith,
the plaintiffs appeal
Moore, ]. The testimony shows
that plaintiffs predecessor in title, j.
H. Koontz, in 1883 built dam across
the Umatilla river near the south
east corner of the southwest quarter
of section % in township north of
range 29 east in Uruatilla county and
dug ditch part of the way and con-
structed a flume the remainder of
the distance of about two miles
northw esterly, on the east side of the
river to Echo, where, In 1885, he
built a -four mill, the motive power
of which was furnished by water
/
flowing in the ditch and fiume. The
mill was destroyed by fire in 1889 but
was rebuilt the pext year. The
United States Reclamation Service
occupied for a short period the line
of the mill race but at all other
times since the mill was originally
built, it was operated and the land
lying under the ditch has been irri-
gated when there was sufficient wa
ter for that purpose From October
1st of any year until July or August
of the next year there is an album
dance of water in the river to supply
all reasonable demands, but between
August and October Of each year that
quantity diminishes and contests en-
sue fr the use of water
The title to the land owned by
Cuhna and his alleged right to ap-
proprlate water for irrigation from the
river at places above the plaintiffs
dam were derived as follows: John
Dickey was the owner of 160 acres of
/ land lying on the west side of the
stream and above the line where the
dam now diverting water into the
[ mill race was subsequently placed
and in 1879 he commenced near the
southeast corner of his land to dig a
ditch from a slough, following the
foot of rock bluff, northwesterly
across his premises in which under
taking he was assisted by James
TAYLOR who extended the ditch to and
upon his lands, four 4O-acre tracts
of which lie west and two 40-acre
pjeces are situate north of he line of
the Dickey lands and water was
thereby diverted and used for lrri-
gatien. Dickey conveyed his prem
ises to Taylor who in 1887 dug new
ditch. commencing below the old
ditch but above the dam now owned
by plaintiffs and extended the con-
duit across his lands, using the wa
ter owing therein for irrigation, and
thereafter abandored the old ditch.
Taylor died and his widow having
remarked, conveyed the Taylor and
Dickey lands to Cuhna. who con-
tinued to use water through the new
ditch for irrigatlng such premises.
Koontz secured from persons who