Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-17
Allen Ditch Co., ct al, V. DOnnell!
ct al. UmatiIla County.

Alien Dltch To-, ct al, V. D0nnelly,
ct al, Umatilla County.
Fred Andrews, Joseph Cuhna, Odd
Teel, George 7. Higginbottom, Mil
dred Spike, Elvira Teel and The AL
len Ditch company, a corporation,
respondents, V. Frank Donnelly, Will
liam H. Daughtrey and j. G. Thomas,
appellants. Appeal from the circuit
court for Umatilla county. Hon. H.
]. Bean, Judge. Argued and submit
ted at Pendleton, May 8, 1871. Raley
& Raley, for respondents. Carey &
Kerr, Harrison Allen, R. R. Johnson
and Frederick Steiwer, for appel
lants. Burnett, j. Reversed.
Fred Andrews, and other private
persons comprising the Allen Ditch
Co., corporation, unite with that
company as plaintiffs and bring this
suit to enjoin the defendants from
diverting any of the water of the
Umatilla River a non-navigable
stream, from a point above the in
take of an irrigation canal which
plaintiffs aver they own and main
tain by virtue of an appropriation
prior and superior to any right of the
defendants.
Concerning the plaintiffs, the NOV
ing parties assert in substance that
the natural persons are the real par
ties in interest and that the corpor-
alton plaintiff, of which they are all
and the only members, was organ
lied by them for convenience and as
a holding concern to manage the
business of the diversion and distri-
button of water to them as individ-
uals through their irrigation plant
They allege in substance that the
natural persons plaintiff are the own
ers of large tracts of what was for
merly arid land in certain sections
in township north, range 80 east OF
Willamette meridian incapable OF
profitable use without irrigation; but
the complaint does not describe the
acreage owned by each individual OF
the irrigation requirements of any
single tract or the use to which 1t is
put. The complaint goes on to state
that about 1870 the plaintiffs and
their grantors and predecessors In
interest built ditch and flume tap.
ping the Umatilla River at point
named and, diverting thereby 10S(
inches of the water of the river, min.
erS' measurement under a 6-incf
pressure, have continually used it OF
their lands for domestic purposes
watering live stock and the irriga
ton of crops, all in an open, motor.
ious, exclusive and uninterrupted
manner whereby they have reclaimed
and seeded about 600 acres of these
lands to alfalfa, orchard, shrubbery
and ornamental trees, all of which
would die but for the use of the wa
ter. The plaintiffs then charge tha
about July 16, 1907, the defendant,
constructed a dam across the rive
at point above the intake of plain
tiffs' ditch, thereby turning the wa
ter entirely away from plaintiffs ir
rigation system and that defendant.
have continued and will continue t
maintain the dam and diversion o
the water unless restrained. TIL,
prayer is for the removal of the dan
and to prevent the defendants from
interfering with the flow of waters Il
plaintiffs ditch and for general re
lief.
The defendant Thomas denied
every allegation of the complaint ant
further disclaimed any interest in tn,
controversy. The defendants Don
nelly and Daughtrey admit the non
navigable character of the Umatill;
River and that they will continue t,
maintain their dam but otherwis,
traverse every allegation of the com
plant. They state also in substanc,
that since May 1S, 1907, they hav,
been and are now the owners o
certain lands in section 16 township