Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-25

that no water naturally runs through
it except only such surface water as
comes from melting SHOWS in the bare
hills adjacent thereto. She also al
leges that during the month of March,
1910, the plaintiffs wrongfully and
unlawfully and against her will and
and consent entered upon her land;
placed a dam in Quartz gulch and
wrongfully, by means of ditch con-
structed there, turned the water upon
her land to her damage by way of
soaking it and softening up the soil,
and she prays for an Injunction
against the defendants forbidding them
from entering upon her land or con-
structing or operating a ditch there.
The new matter in the answer, was
traversed by the replies. After
hearing upon the pleadings and the
evidence reported by the referee the
court below rendered a decree in eff
feet establishing plaintiffs right to
maintain and operate the ditch, but
restricting their use of the water to
the surplus above ten miners inches
under a six-inch pressure calculated
after excluding therefrom water
drained from an adjacent mine. The
defendants were enjoined from inter-
fering with the prescribed operation
of the ditch and the plaintiffs were
enioined from using any water except
as above described Both parties ap-
peal.
Burnett, J. The parties seem to be
occupants of the public lands of the
United States not having performed
all the conditions by which the legal
/ title could be derived from the gen
eral government. Their holdings are
unpatented and hence their right to
the land is such as equity will protect
without sending them in the first in
stance into a court of law Kitcher-
side v Myers, 10 Or. 81; Watts v
Spencer, 81 Or. 1852; Browning "
| Lewis, 80 Or. II. The equitable title
of the plaintiff Borman to the placers
mentioned in the complaint is not
seriously questioned by the defen-
dants. AS to the ditch itself they
claim that however much it may have
been used in former years yet the
plaintiffs have abandoned the same.
By clear preponderance of the evil
dence it is in our judgment estab-
/ lished as fact that the plaintiffs and
their predecessors continuously since
the year 1884 have annually during
| the spring months conducted water
through the ditch from Quartz gulch
to the placers in question with the
exception of the years 1907 and 1908
In those years owing to the unusual
light fall of snow during the preced-
ing winters, there was no water worth
mentioning in Quartz gulch; certainly
too small an amount to conduct by
the ditch to the mines of the plaintiff
Borman. Several witnesses on behalf
of the plaintiffs testified positively as
to their use of the water thus de-
scribed The only opposition by the
defendants to this testimony was from
witnesses who had lately observed the
ditch and testified that it had the
appearance of being nearly filled W
and in many places sagebrush hat
grown therein to the height of foo
and a half to two feet, but these con
ditions are readily accounted for b!
the fact that owing to the scarcity o
water in Quartz gulch for the TIVE
years mentioned the ditch could no
be used. The evidence fails to dis
close any intent on the part of tn
plaintiff to abandon the water righ
in question. An intent is a necessar,
element in the matter of abandon
ment. Watts V. Spencer, supra; HougI
" Porter, 81 Or. 91S,
; The principal contention of the de
PENDANTS is that there is no stream il
Quartz gulch. They maintain, in eff
: feet that only from water course ca
, water be appropriated within tn
meaning of the law, and that Quart
j.. gulch is not a water course In othe
, words they say, in substance, that
, is a mere temporary conduit for sur
: face water which is never the subjeC
of appropriation in the legal sense
The situation as detailed by the wit
/ nesses, concerning the gulch men
= toned is that it's water shed is CON
posed of barren hills upon which n
o vegetation grows save a lone junipe
q tree and the sagebrush which is tn
n natural product of the land in tha
f vicinity. Above the desert entry {
6 the defendants the gulch consists {
i several confluent prongs, down whic
c the water from melting SHOWS flow
G in the springtime, and after tn
r branches unite the water flows in
o clearly marked channel or course se'
Il eral miles to the northeastward wheI
n it empties into Ruckles creek. 1t
e fed by melting SHOWS in the spring
# time, beginning usually about the la
h ter part of February or early in Marc
d and continuing generally until son
h time in the early part of June, abol
d which time the positive flow cease
N but afterwards there remain son
= springs in various parts of the gulC
: which continue until sometime in Al