Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-22
OREGON SUPREME COURT DECISIONS
Full Text Published by Courtesy Of F. Turner, Reporter
Supreme Court

suance Of the oral agreement, was
known as 3-foot ditch; and that by
the written agreement it was acced-
ed that P. L. Smith, Charles Dough-
erty and L. Dougherty, as Dougherty
Brothers, parties to the agreement
should enlarge the ditch and make
the same 5-foot ditch and to have
the enlargement completed on or be-
fore the first day Of May, 1901. 1t was
further provided that If the ditch was
so enlarged according to the agree
ment that p. L. Smith should have
one-fourth interest therein, and the
Dougherty brothers should have a
one-fourth interest in the ditch, and
that the plaintiff should have a one
half interest therein It was also
covenanted that defendant should
have the right to irrigate, from this
ditch, his pasture land along the
ditch, provided that he would use the
water only when 1t was not being
used or required for irrigation by
plaintiff, or P. l.. Smith or the Dough-
erty brothers; and that defendant
should have the right to convey his
own water from other bitches through
the Dalton ditch and to use the same
to irrigate his pasture land, the wa
ter contemplated in the written
agreement being defendants portion
OF the water flowing to the ditch from
North Powder River; that in all 9TH
er respects, excepting as hereinabove
stated with reference to the written
agreement, the respective rights du-
ties and obligations of plaintiff and
defendant relative to the Dalton ditch
and use thereof. and the terms and
conditions Of the oral agreement have
at all times herein mentioned, since
the date of the oral agreement re-
mained unchanged, The enlarge
ment of the bitches provided in the
written contract was fully performed
according to the terms thereof, and
all covenants and conditions on plain
tins part have been fully kept and
performed. At all times herein men
toned the ditch was the only source
or means whereby plaintiff could
procure water for irrigating his lands,
and that 1t carried and conveyed
abundant and sufficient water for ir-
rigating plaintiffs lands, together
with the water which defendant was
entitled to use under the agreements.
Defendant answered admitting the
execution of the written agreement
and the title of plaintiff to the land
described in the complaint and deny
ing every other allegation. For
further and separate answer defend
ant alleged that the written agree
ment was full and complete final
settlement, and adjudication of all
the rights and interests of each party
to the agreement of all water rights,
bitches and ditch rights mentioned in
plaintiffs complaint; that by the
terms thereof all prior agreements
were merged and ceased to exist;
that the written agreement was in
tended to and did take the place of
all prior agreements; and that any
use that defendant made of any of
the waters or bitches mentioned in
the complaint was made on his own
land and In accordance with the
terms OF the written agreement.
For second separate defense de-
fendant alleged, that in a suit pend
ing in the circuit court for the state
Of Oregon, for Baker county, in
which ]. d. McPhee, P. l.. Smith and
James Dalton were plaintiffs, he.
James Dalton, plaintiff in this suit,
and l., s, Kelsey, defendant herein,
was defendant therein. and In which