Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-20


stream between the places of intake
and the termination of the mill race
such quantity Of water as might be
necessary for irrigation along the
line Of the ditch and fume and also
to propel any mill that he, his heirs
or assigns might erect at or near
Echo. Taylor being owner of so
acres of riparian land, situate below
the line of the dam built by Koontz
granted to the latter December 21,
1888, the right to divert from such
premises and appropriate water by
the mill race.
AT that time 1t will be remembered
that Taylor and Dickey had an old
that tapped a slough on the west side
Of the river some distance above the
dam built by Koontz. Taylor's deed
conveyed only the right to divert wa
ter affecting his lands lying below
the intake of the mill race and did
not diminish his right to take water
by the old ditch for irrigation. nor
prevent him from moving his place of
diversion to that of the new ditch.
1t is maintained by plaintiffs coun-
sci that the old ditch referred to was
dug by Taylor and Dickey to drain
their lands and that no water fiow-
ing in that conduit had ever been
used for irrigation. The fact thus as
serted to have been established is
ieduced from testimony which shows
that levees were built by Dlckey and
Taylor to keep the freshets caused
by melting snow from overflowlng
their lands.
Two sons Of John Dickey testified
that in 1871 their father and Taylor
built levees along the slough to pro-
tect the lands from overflow but that
in 1879 the old ditch was dug through
such embanl1ment.
We think it satisfactorily appears
that after the sudden floods subsidized
and the river reached its ordinary
stage, water was diverted from the
slough by the old ditch and used for
irrigation, the quantity being annual
ly increased as the lands were lev
eled and put in cultivation, the limit
of which area has been reached by
Cuhna. His claim to the use of the
water by the new ditch is prior to
plaintiffs appropriation and there
fore superior to thNir right and the
only question remaining is the guam
tity of water to which he is reason
ably entitled.
The defendants attorney, invoking
the rule adopted in Coventon V. Seu-
fert, 3S Ore. 54S, that the capacity of
the ditch at the smallest place af-
fords the measure of the right, insists
that the quantity Of water awarded
by the decree was Just distribution.
The principle announced in the case
referred to is not now controlling,
when more careful methods of irrlga-
tion have been discovered SO that wa
ter is not wasted and larger area
of land is adequately moistened,
thereby promoting a greater and bet
ter development of the country. The
adaptability of arid lands to the
arid growth of particular crops by
careful irrigation furnishes the test
of the quantity of water reasonably
necessary for that purpose, The
number of acres of such land that is
to cultivation, the degree
of sterility Of the premises, the most
profitable crops that can be raised
by artificial application of moisture,
and the quantity of water reasonably
necessary to produce the harvest on
an acre by careful husbandry, are
elements to be considered in deter
mining the measure OF an appropria-
ton.
Keeping this rule in view the testi-
mony will be examined as to the area
of the defendants cultiyable land
that can be irrigated by his ditch. L.
NJ Garfield, a surveyor, as plaintiffs
witness stated upon oath that he ac-
curately measured such lands to de-
termine the acreage and topography
of the premises, and from the notes
Of such survey and plane table
sheet he made map which was re-
ceiyed In evidence He was then di-
rected as follows: you may take up
this Cuhna land section by section In
your own way and tell the court how
much alfalfa land, orchard land,
grain land, irrigated and non-lrrigat-
ed land you found N making your
survey Of the same" He replied;
"The southeast quarter of the south
east quarter of section 21, will say
all of this land Of Joseph Cuhna's is
In township north. range 20 east Of
the Willamette Meridian. In Sec
ton 2l there 1916 acres grain. There
Is no alfalfa and no orchards. In
the southwest quarter Of the south
west quarter OF section % there is 81
acres Of alfalfa, no orchard and 555
acres Of grain. That being all the
land In % In fhc aorthaaqf nuartaf