Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-22
Dalton vs.. KeIsey, Baker Countr.

Dalton VS.. Kelsey, Baker County.
James Dalton, respondent, " L. s.
Kelsey, appellant. Appeal from the
circuit court for Baker county. The
Hon. William Smith, Judge. Argued
and submitted Feb. 20, 1911, Gustav
Anderson (and John L. Rand, on
brieD for respondent. Charles A.
Johns and Thomas H. Crawford, for
appellant Mcbride, ]. Reversed.
This is an action at law to recover
damages caused by an alleged diver
sion Of irrlgating water from ditch
owned in common by plaintiff, defen-
dant and others, by which unlawful
diversion plaintiff claims that his
crops for the years 1903, 1904, 1905
and 1908 were destroyed or injured.
There is a separate cause of action
for each year. The complaint alleges,
In substance that plaintiff is the
owner of certain land, therein des-
cribed, which is totally unproductive
without artificial irrigation, but that
by the aid of water is capable Of pro-
ducing large and valuable crops of
alfalfa, wheat and other grain; that
defendant is the owner of certain
land situated west of plaintiffs land;
that on or about the - day Of
1s9--, plaintiff and defendant en-
tered into an oral agreement, where
by It was agreed that plaintiff should
have the right to construct and use
certain ditch from a point at or
near the south line of Sec on de-
fendant's lands, through and across
the land to and upon plaintiffs land,
for the purpose OF conveying to the
land of the latter the waters of a
certain natural watercourse, known
as Warm Springs Branch, together
with the waters then flowing thereto
from what is known as the Hutchin-
son Slough and North Powder River
1t was further agreed that defendant
should have the use OF the ditch only
to the extent of conveying therein
to bis own land, his certain portion
OF water flowing to said point from
North Powder River, and to use all
the waters of the ditch only at such
times as plaintiff was not using or
requiring their use; that such use of
the water by defendant was to be for
irrigating his pasture land along the
course of the ditch, and not other
wise; that defendant would not d.
vert any water flowing through the
ditch, except as hereinabove alleged;
that he would at sll times allow
plaintiffs waters to flow uninterrupt-
edly in the ditch through defendants
lands, to and upon plaintiffs lands;
that defendant would not at any time
interfere Herewith, nor dam plain
tins waters flowing therein; and that
defendant would not use the waters
when plaintiff was using or requlr-
ing their use. excepting as herein
above alleged; that thereafter and
prior TO the - day Of -, 1900. in
pursuance of the oral agreement and
in conformity Herewith, plaintiff con-
structed the ditch described, and con-
veyed water through the same to his
lands; and that defendant had the
use thereof as agreed, the ditch being
called the Dalton Ditch"
Thereafter, on the --- day Of -,
100, an agreement in writing was
made and entered into by plaintiff
and defendant for the purpose. among
other things, of defining certain
rights, to be thereby granted to other
persons, to certain enlargements OF
the ditch to be thereafter made, 1t
Is further alleged that up to the time
OF this agreement the ditch as con-
structed and used under and in pur-