Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-24
Mnttles '. Baker County.


n C. Wattles. appellant, y. Baker
county. a municipal corporation re-
spondent Appeal from the circuit
court for Baker county. The Hon.
William Smith, Judge Argued and
submitted July 5. 1911 f. N. Sax
ton "a. NJ. Crawford, attorney gem
eral. and Saxton & Goodwin, on brieD
for appellant. W. S. LOwens, on
brief, for respondent. Mcbride, J.
Modified.
Plaintiff is water master Of Dis
trict 40. 2 Of Division No. 2 OF Ore
gon. The district embraces the
whole OF Baker county.
The first cause OF action, In sub
stance, Is as follows: On July 16,
1909, the joint owners Of the Newt
Young ditch, which IS situated in
Eagle Valley IN District No. 2, there
tofore having established their re-
spectlve rights in such ditch by mu-
tual agreement, being unable to
agree as TO the division and distri-
button OF the water received through
the ditch as between themselves
one Of the Joint own\rs made appli-
cation by a written notice to plain
tin, as water master. The notice
gave the names Of the joint owners
OF the ditch and the proportional in
terest OF each therein, and stated
that they were unable 10 agree as to
the division and distribution Of the
water received through the ditch
and requested plaintiff, as water
master, to take charge Of the ditch
and the division and distribution OF
It's water At that time plaintiff was
unable 10 perform all OF the duties
required Of the water master OF the
district but was compelled TO and did
appoint assistant water masters to
perform these duties which he, per-
sonally was unable TO perform. The
crops situated near the lower end of
the ditch were suffering from want
OF water for their irrigation. but the
joint owners were unable to secure
any water through the ditch for that
purpose, because Of the interference
and diversion Of the water therefrom
by their co-owners. who we're located
at the head OF the ditch. Pursuant
to such notice and by the authority
and direction OF the superintendent
Of Water Division No. OF the state,
plaintiff as such water master. pro-
ceeded to take charge Of the ditch
and to select and appoint an assist
ant water master 10 divide and dis
tribute, personally. the water flow-
Ing through the ditch. In selecting
and appointing such assistant Il was
necessary for plaintiff TO journey to
Eagle Valley, a distance Of 30 miles
from Baker City-hls resldence-to
go over the ditch with the assistant.
and to point out and instruct him
as TO his duties in connection there
with. The trip to Eagle Valley and
the duties performed while there by
rlaintif, as watermaster, consumed
and occupied five days. to-wit. from
July 1G TO the goth. 1909, inclusive.
Plaintiffs compensation as water
master, consumed and occupied five
days, to-wit: From July 1G to the
goth, 1903. inclusive. PLAINTIFFS
compensation as water master is 81
per day, as provided by statute.
Prior TO the commencement of the
action he presented 10 the county
court a verified account Of his SER
Vices, approved by f. =, Saxton, wa
ter division superintendent but pay
ment was refused
For second cause Of action II Is
alleged, that, on August 20, 1909.
upon the written request OF Thomas
White, water user of Upper Burnt
River In Baker county, f, NJ. saxton.
superintendent OF water division No.
OF the state. directed plaintiff, as
water master OF such district, to
take charge Of the distribution of the
water OF such stream. and to divide
and distribute the same in accord
ance with the terms OF the decree of
the circuit court OF the state for
Baker county In that suit in which
Thomas Whited, ct al, we're plain
tins and Sam Gavin, ct al, we're de-
PENDANTS
Il is further alleged that, at the
date OF the request, plaintiff was un-
able TO perform all the duties of
water master of such district; that
the crops Of Whlted were suffering
Tor want of water to lrrlgate them,
by reason OF the unlawful diversion
thereof by the other parties to the
decree, and that he, therefore, ap-
pointed w, r. lawson assistant wa
ter master and that he qualified and
performed the duties OF assistant
water master for 10 days; that the
agreed compensation OF Lawson was
- per day; that properly verified
account for these services was re-
Jected by the county court and that
the claim has been assigned to plain
In the third cause Of action plain