Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-22

and fragrance to the breath.
the court had Jurisdiction of the par
ties and Of the subject, findings of
fact were made and a decree rendered
therein, of date on or about May q,
1906, which decree became and is
now final, and by which the rights of
this defendant and of James Dalton
were ascertained, adjudged and de-
creed, as to what is known as the
Kelsey Wilson ditch and the water
rights thereof; and that by the de-
cree Kelsey, the defendant herein,
was decreed to be the owner of first,
prior and exclusive right to the full
amount of the ditch to the extent of
four feet in width and to its full ca
pacity threof; and, among other
things, it was decreed and determined
that what is known as the Dalton
Box" should be kept and maintained
in its then position, without let or
hlndrance,and this defendant pleads
such decree, and the findings Of fact
therein, as a defense to plaintiffs
complaint and the acts therein al
legged.
The reply put in issue the new mat
ter in the answer. Plaintiff had judg-
ment and defendant appeals.
Mcbride, j.: 1t is claimed that the
complaint does not state facts suffi-
cient to constitute cause of action
because it does not show that plain
tiff was the appropriation of any wa
ter or had any right to divert water
from the ditch. If this were an ac-
tion between persons claiming the
same water by prior appropriation,
there would be merit in the objection,
but here plaintiff claims the right to
use the Kelsey-Dalton ditch by virtue
of an agreement with defendant, and
If he could procure the water, as he
alleges that he could, his source of
title was no concern of defendant so
long as he did not assume the right
to take that which defendant had
appropriated The right of defendant
was to use the ditch to the extent of
his appropriation is conceded. The
gist of this action is that defendant
has exceeded the extent of that ap-
preparation and unlawfully appropri-
ated other water, the right to use
which he had by express agreement
conceded to plaintiff.
1t is also objected that the first,
second and third causes of action are
barred by the statute of limitations
and, in our opinion, this is we'll taken.
This is essentially an action for
trespass on the case and not on con-
tract. 1t is true that plaintiffs title
rests in contract Whatever the or
iginal understanding between the
parties may have been, 1t was finally
settled and fixed by the written agree
ment of October, 1900. 1t is a docu-
ment executed and acknowledged with
all the formalities of conveyance Of
real property and recites that its pur-
pose Is to forevermore settle and es-
tabllsh the respective rights of said
parties" in and to the water and
bitches therein mentioned. Its very
object was to make certain, clear and
permanent the oral agreements and
understandings heretofore existing
between the parties and they were
merged therein. There is no cove
nant on tn part of Kelsey to abstain
from doing or to do any act with ref
erence to Daltons share in the ditch
or the water running therein. Each
party mutually grants to the other
certain rights and reserves to him
self certain rights. Under such cir
cumstances case is the appropriate
remedy and the action Is ex delicto:
Lindeman " Lindsey, 50 Pa st. 80.
Neither can the present action be
construed as an action for trespass.
Kelsey is not charged with interfer-
ing with the operation of the ditch
upon plaintiffs land. 1t is imputed
that he entered upon the ditch upon
his own land and diverted the water
so that it failed to reach the lands of
plaintiff, In such contingency the
remedy is by action on the case
Farnham on Water Rights, Sec. 4SS.
The significance of the foregoing
observation is this: Were this an ac-
tion on the contract or for trespass,
the statute Of limitations would run
in six years: L. o. L. Sec, 6, sub. 1.
An action on the case Is barred in two
years; l.. o. L, Sec, s, sub. /, 1t fol-
lows, therefore, that the first three
causes Of action are barred by the
statute and need not be further con-
a