Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-18

Company V. Bennett, ct al, 80 Or. SO,
to final decree. establishing its rights
above mentioned, as dating from July
u, 1881, and fixing its amount of di-
version at 1000 inches of water, final
decree therein having been entered
June 20, 1896. Plaintiff asks that it
be adjudged to be the owner of SO37
inches Of water. prior and superior
to defendants, and that they be en-
Joined from preventing the flow of
that amount Of water to the head OF
plaintiffs ditch.
The defendants deny that plaintiff
is the owner of the water right al
legged; or that it dates from July IL,
1881; or that it has acquired right
+ to S037 inches thereof; or any other
amount prior to the defendant; and
alleges that the predecessor in inter-
est of defendant company, ]. B. Nc
Laughlin, in February, 1881, entered
upon the channel of Malheur river
in Sec. 3, T. 19 S. r. 43 E., the same
being at that time unoccupied gov
ernment land, and posted notice Of
a water right thereon, claiming 5000
inches; that they thereupon COM
menced the. construction of the ditch
and thereby diverted $500 inches of
water, which diversion was complet-
ed during the year 1888, for irriga-
tion upon the S " Of Sec. 6, and upon
Sec. 8 T. 10 s. r. Al E., and sections
2 and IL T. 10 S. R. 43 E. which, at
that time, were government lands. ].
B. Mclaughlin, s. p Stacey and 9TH
ers occupied portions of these lands
and they anticipated the immediate
settlement Of parts thereof by others,
including these defendants, and their
predecessors in interest, large por-
tions of the lands lying under the
contemplated ditch and subject to ir-
rigation therefrom, such ditch being
known as the Mclaughlin ditch"
Defendants further allege that the
ditch and appropriation thereby is
prior in time and right to any claim
by plaintiff; that defendants rights
in the Mclaughlin ditch or those of
their predecessors in interest were
not involved in the suit of Nevada
Ditch Co. V. Bennett, ct al, and there
fore they are not bound thereby.
The testimony was taken before a
referee from which the court found
that defendants have prior right to
1000 inches of water and rendered a
decree accordingly. Plaintiff ap-
pealed therefrom and defendants also
, appeal from that part of the decree
which limits their right to HOO inches
of water.
Eakin, c. j.: 1t may be stated first,
in regard to plaintiffs appeal that
, the evidence given by ]. B. McLaugh-
lin, now deceased, at the trial of the
case of the Nevada Ditch Co. v Ben
nett, ct al, which is offered here as
evidence of the facts testified to, was
incompetent. Sec. 932 L. o. L. pro-
vides, that when the reporters notes
. of the trial are transcribed and GER
/ titled they shall be prima facie a
correct statement of the testimony
and may be read thereafter as evil
dence, as the deposition of a witness,
in the cases mentioned in Sec. S52 l..
o. L. That section provides, that a
deposition. when once taken, may be
read in said action or suit or in any
other action or suit between the same
parties or their representatives upon
the same subject 1t appears from
tho record that this ditch was not the
subject Of litigation in the former
suit and the deposition was there
fore incompetent. Neither are de-
PENDANTS affected by the findings or
decree in that suit for the same rea-
] son.
AS to the date of the McLauglin ap-
! preparation, Mrs. McLauglin testified
/ that early in the spring, not later
than March, 1881, ]. B. Mclaughlin
posted water right notice; cleared
sage brush off of the land, and did
some scraping toward the eonstruc-
tion of the Mclaughlin ditch; that
she went to the ditch on the 18th day
of July, 1881, while he was at work
there, and states why she has good
reason to remember the circum-
/ stances and time. Mrs. Stacey testi-
ties that her husband, prior to 1881,
had an arrangement with ]. B. Nc
! Laughlin to move down to Malheur
/ river, and early in the spring of 1881
/ that her husband at the request of
! ]. B. Mclaughlin went down there to
/ attend ditch meeting. Mr. Frohman
testifies, that in March, 1881, Nc
Laughlin was at work on the ditch;
that he did some plowing and cut
brush on the line of the ditch. Mr..
Mumford testlfes, that on the 4th
!; day of July, 1881, Mclaughlin showed
/ him the ditch and he saw that he had
!; done some work on 1t. Mr.. Linebarg-
er testifes as to a meeting Of six set
y tlarc ha1A In, RoA,,,o.r 1000 l,to