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

lnB MUST control yours ana you must
abide by such finding, which, l in
struct you, is final and conclusive
alike upon the parties hereto, this
jury, and this court, and they must
be so treated by you under your oath
as jurors" This instruction is erro-
neous, in that It leaves to the Jury
the construction Of the findings Of the
circuit court. It was the duty of the
court to construe these findings and
explain to the jury their force, eff
cacy and application to the matters
at bar.
instruction No 6, objected to, is as
follows: "One Of the provisions OF
plaintiffs Exhibit B. which is the
instrument executed by L. s. Kelsey,
C. A. Dougherty, James Dalton and
others, on the 10th day of October,
1900, reads as follows: - and the
said L. S. Kelsey shall have the right
at any time and all times to pass his
own water from other bitches
through said ditch, and at any time
use his own water therefrom.' l in
struct you that the said stipulation is
mutual; that is to say, all parties to
that agreement have the right to pass
their water through that ditch and
no party to that agreement has the
exclusive right. Under that stipula-
tion each party must respect the
rights of his co-owners in running
his own water through that ditch.
This stipulation does not give Mr..
Kelsey or Mr.. Dalton a right to run
such a quantity of water for his own
use into that ditch as would deprive
any other party to it of the same
right. Wherefore, If you find from the
evidence, that the defendant caused
damage to the plaintiff, by disre-
gard of plaintiffs rights to use water
therefrom, the defendant would be
liable therefor l instruct you that
no party to that agreement has a
right to the exclusive control of the
ditch mentioned in this agreement, or
any part thereof, from its intake on
North Powder River to the tap of the
last party using water therefrom, but
that each party must respect the
rights of the others"
This instruction Is misleading in
that it seems to leave out of view
defendants prior right to use four
feet of the water flowing through the
Kelsey-Wilson ditch. 1t is true that
such right is expressly recognized in
other instructions but there is such
an ambiguity here as was calculated
to confuse the jury.
instruction No. 8 is as follows
CAS- to the Dalton Box l instruct you
that the plaintiff has no right to dis
turb 1t or lower the bed of the ditch
at that point or above there or to
fill in the ditch at the Hutchinson
Slough, with more water than can be
carried past the Dalton Box Nor did
Mr.. Kelsey have any right to dam up
that box and prevent any water from
flowing through the same If there
we're other reasonable means availa-
BILE to him whereby he might use his
water, If by so damming he would
needlessly prevent plaintiff from get
ting his share of the water. If by
opening the bottom of the dam in
that box whereby the water could
run through to plaintiff and by turn
ing in enough water additional at the
head OF the ditch in North Powder
River he could have procured suf-
flcient volume of water to have salts
fled his needs and thus have avoided
any injury to plaintiff, If plaintiff
was injured, it was Mr.. Kelsey's duty
to have done so, and to have al
lowed water to go down to plaintiff.
l do not mean to say that Mr. Kelsey
did put a dam in the Dalton Box;
that is question for yout to deter
mine from the evidence" We think
this instruction is correct.
1t is plauslbly commended that a
different rule is laid down in the case
of Carnes v. Dalton, - Or -; 110
Pac, 40; but we do not so view that
case. In that case it appears that,
by reason of the dam in Powder Riv-
er being out of repair, it was impos-
sible for Carnes to get the quantity
of water he was entitled to by reason
of a prior appropriation without re-
pairing or raising the dam. Dalton
who was defendant in tht case
claimed the right to use the full
amount of his subsequent appropria-
ton, leaving the prior appropriation to
rebuild to repair the dam in order to
get the share to which he was en-
titled. The court properly held that
Carnes was not required to do this,
but If there was sufficient water
flowing at the head OF the ditch to
supply Carnes that he was entitled
to take it, leaving to the subsequent
appropriation the duty of raising the
dam, so as to turn more water into