Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-17
OREGON SUPREME COURT DECISIONS
Full Text Published by Courtesy of F. A Turner Rel
Supreme Court.

3 north, range 29 east described by
metes and bounds upon which at all
times mentioned in the answer was
a grist and feed mill, the machinery
of which is propelled by water con-
Quoted to it by race and flume also
the property of defendants, and that
ever since December q, 1888, they
and their predecessors in title by
means of said race have appropriated
from the Umatilla River and con-
Quoted to the mill a sufficient guam
tity of water to operate the mill and
to irrigate lands along the line of the
ditch. AS basis of their right to do
this they aver that, in the years 1888
40 after this, appropriation of the
water, j. H. Koontz, their predeces-
sor in title, obtained from the own
ers of all of the riparian lands on
both sides of said Umatilla River
from and adjacent to said point of
intake of said mill race to and ada
cent to said point of outlet of said
mill race the right to divert from it's
natural channel and convey from
said Umatilla River and through said
mill race, such portions of the water
OF said Umatilla River as might be
necessary for the irrigation of the
lands along the line of said mill race,
and also to propel by water power any
1ouring mill, which might then or
thereafter be constructed on the
lands of the defendants. and ever
since said time the said rights, so OBJ
tanned by the said James H. Koontz,
have been continuously enjoyed by
him, defendants other predecessors
In title, and these defendants"
The defendants contend that the
water thus appropriated is essential
to the operation of the mill and the
irrigation of lands under their ditch
and that their appropriation is prior
ana superior to any right of plain
tlHs. Defendants also seek to estop
the plaintiffs from alleging anything
stated in the complaint because of
the conveyances to Koontz by the
former riparian owners of the right
to divert water to his mill and for
irrigation purposes some of which
riparian owners were predecessors In
tltle TO some of the plaintiffs and as
lurther ground of estoppel charge
That at the time defendants and their
predecessors appropriated the water
they knew that Koontz had taken the
water and was using it for the pur-
poses of the mill and irrigation. They
pray that the plaintiffs be estopped
to allege anything stated in the com
plant; that the right of defendants
to use sufficient water of the river
to operate the mill and to irrigate
along their race be decreed to be
superior to any right of plaintiffs and
That the bill be dismissed with costs
Inc reply traverses the answer in
almost all its averments and affirma-
lively pleads an estoppel against de-
PENDANTS allegations about the deeds
from the former riparian owners on
the ground, in substance, that in
1889 after the execution of said deeds
to Koontz, plaintiffs predecessors in
title, including the riparian grantors
of Koontz together with Koontz him
self, then land owner on the west
side of the river, built a dam in the
river at or about the point of the
present intake of plaintiffs ditch and
reconstructed the ditch and thereby
openly and notoriously made a fur
ther visible and exclusive appropria-
ton of 1880 inches of the water of
the river for use and which was used
on their lands and the lands of
koontz then owned by him, continu-
ously since then for the beneficial
purposes of irrigation, domestic af-
fairs and watering live stock.
The decree was in effect that the
defendants were first of all entitled
to enough water, without naming the
J quantity, to keep their wooden fiume