Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-17

structed by the said James H. Koontz,
his heirs or assigns at or near the
town of Echo" This language of
those deeds clearly indicates only a
partial and not total diversion of
the stream as contemplated by the
parties. 1t amounted to a license to
the grantee to appropriate water suf-
ficient for the enterprise then in
view. He had the right to make one
appropriation and to follow it up by
actual application to the useful pur-
pose designed within a reasonable
time; but that would determine his
right as of that date, if indeed it did
not exhaust his privilege under that
license. At any rate each new enter
prise or material enlargement Of the
old one requiring additional water
would call for new appropriation.
The parties to the deeds by their
subsequent conduct put upon those
writings a construction in conso-
nance with the idea that the mill
was to have only part of the water.
Without dispute, it appears in the
testimony that after the mill had
commenced operations, its then own
er, Mr.. Koontz, Joined with his gran
tors in those deeds and other par
ties, plaintiffs predecessors, in build
ing headgates and dams and recon-
structing the ditch now owned by
plaintiffs, whereby the water was
taken upon and made an appurte-
nance not only to their lands, but
also to his own land on the west side
of the river which he afterwards
conveyed to plaintiff Andrews with
all the tentements, hereditaments or
appurtenances thereunto belonging
or in anywise appertaining There
was then water for users on both
sides of the river. Mr.. Koontz could
not in equity and good conscience
avail himself of the assistance of his
then co-workers to reclaim his land
and make the water appurtenance
thereto as we'll as to their holdings
and destroy the appurtenance after
he had conveyed the land to one who
bought on the faith of the then stu
alton created by Koontz himself.
His grantees stand in no better con-
dition. They also took with know
ledge of the situation as it then
stood and were put upon their in
quiry.
Before the country was so thickly
settled as it is now the practice for
the appropriation of water ito keep
all you get and get all you can" was
in many cases tolerated; but yield
ing to reason and justice to all, the
later authorities have established a
different rule. We conceive it to be
the law, except as modified by stat
ute, that the right of a prior appro-
priator is paramount, but the right is
limited to such an amount of water
as is reasonably necessary for such
useful purpose and project as may be
fairly within contemplation at the
time the appropriation is made.
Following the appropriation the ap-
proprietor is entitled to reasonable
time within which, by ordinary dill
gence, he may complete the project
and actually apply the water to the
useful purpose intended. What is
reasonable both as to the amount of
water and as to the time any given
project may De completed must de-
pend upon the facts and circum-
stances of each particular case,
Ison v. Sturgill, 109 Pac. $40 and
Porter v. Pettengill 110 Pac. 1893 are
instructive cases on these matters.
Under the principle already noticed
that any material enlargement of an
original project or the Inauguration
of a ney enterprise requiring addi-
tional water would call for a new
appropriation which must be in sub
ordination to the rights of others as
then existing, the testimony on the
part of the plaintiffs is not clear as
to the scope of the undertaking in
which they and their predecessors in
interest at first engaged. We are un-
able to determine whether either
plaintiffs or defendants have merely
carried out their original designs or
whether they have gone on into new
and enlarged ventures demanding
more and more water until, as ap-
pears by the pleadings, they both
want all the water.
We are satisfied from the evidence
that plaintiffs and their predecessors
were using the water for domestic
purposes, watering live stock, and
irrigating on the west side of the riv-
er before the diversion of water to
the mill on the east side; but to what
extent either in the aggregate or as
to any particular tract is not dis
closed by the record before us. Both
plaintiffs and defendants have devot-
ed their energies in this litigation, in
the main, to the establishment of
mere priorities without reference to
what is a reasonable amount of wa
ter to be used or what amount was
in fact appropriated in the first in
stance. Under such circumstances
while we are satisfied that all the
parties have rights in the water as
against their opponents here, the
record does not furnish us sufficient
data upon which to declare or to de-
fine those rights with that certainty
necessary to support the extraordi-
nary remedy of injunction. To au-
thorize an Injunction, the rights
which it is designed to protect should
be established with certainty and to
that end all persons interested in the
thing about which the dispute has
arisen should be brought before the
court. This was done in Hough ".
Porter 81 Or. 91S; 95 Pac. 1872; SO
Pac. 1888, where Justice King points
out the futility and waste of effort in
attempting to settle such a contro-
versy by piecemeal.
We conclude that the decree of the
circuit court should be reversed and
the suit dismissed without costs or
disbursements to either party and
without nreiudice IN anv Othar suit