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


with Kelsey, whereby they were to
enlarge the Kelsey-Wilson ditch and
double its capacity so as to make it
an eight-foot ditch, as far as the VIII
son tap, and from there on to extend
it south to the Warm Spring branch,
making it Of sufficient capacity to
carry the volume of water admitted
at its head, the enlargement to be
subject to the rights of Kelsey and
Wilson held in the original ditch;
that prior to such enlargement Kel-
sey had extended the ditch south to
the south line of his claim and had
used water therefrom at point
known as the Dalton Box; that
Kelsey had a prior right to four feet
in width of the capacity of the orig
inal ditch, irrespective of the en-
largment; that, from Hutchinson
slough south, the ditch had not been
enlarged sufficiently to carry but
small portion Of the water which the
ditch above would bring to it; that
the contract of 1888 did not contem-
plate any new or additional use that
would give plaintiff equal rights with
defendant Kelsey in the four feet of
water originally appropriated by him.
The ditch described in the agreement
at bar begin at the Warm Springs
creek and is a continuation of the
ditch described in the above findings.
1t will be seen that the principal con-
tention in that case was that Dalton
and his associates were entitled to an
equal right with Kelsey in all the
waters that flowed through the Kel-
sey-Wilson ditch.
The decree offered in evidence ad-
Indicates finally these matters: ~
That Kelsey had a prior right to the
water occupying four feet in width of
the enlarged ditch; (2) that plaintiff
in this case, and his associates, were
entitled to any additional water that
the ditch would carry after Kelsey's
appropriation was exhausted; (3)
that Kelsey could divert at the Dalton
box or at any other place the quota
of water belonging to him if that
amount came down from Powder
river; (4 If, in the use of his por-
tion Of the water, the bottom of the
ditch at the Dalton Bow was raised
necessarily so high that no water
went down to Dalton, Kelsey was not
liable; (5) that Kelsey should not in
terrupt the flow of water from Hutch
inson slough, through the Dalton box,
except when such flow was equal to
the capacity of the ditch.
From this we take it, that. if there
should happen to be scarcity of wa
ter from Powder river, Kelsey could
not make up the deficiency by divert
ing the Hutchinson slough water be-
longing to Dalton. The pleadings in
the former case are not in evidence,
but we assume, from the opinions
found in A Or. 1913 and As Or. 200,
that the findings and decree cover all
the issues in the case.
While we do not hold with appel
liant that the whole agreement in re-
gard to this ditch is merged in the
judgment in McPhee " Kelsey, we do
hold that, so far as that decree affects
the rights of the parties to the water
in the Kelsey-Wilson ditch and,
therefore, incidentally their rights, to
have the same water flow in the ditch
described in the agreement in the
case at bar, it is conclusive; but as
we have already remarked, that de-
cree did not give Kelsey any right to
unnecessarily divert more than his
share Of the water nor to cut plain
tbs bitches to irrigate his pasture
land, after his agreement only to use
the water for that purpose when
plaintiff did not require it.
The evidence as to the capacity of
the original Kelsey-Wilson ditch and
the Kelsey-Dalton ditch is exceeding
ly unsatisfactory, the diversion ap-
parrently being made in reference to
width of the ditch rather than the
volume of water that would flow
through it, so that when witnesses
testify that there is plenty of water"
at the Dalton box, to answer the
needs of both Kelsey and plaintiff,
their statements SAVIOR more of an ex-