Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-13
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

The water in Rattlesnake Creek
in the year 1904 was less than it
had previously been, and by reason
thereof and in consequence of the
diversions, the hay crop that season
on the plaintiffs land was almost
failure. In order to prevent a
scarcity Of water during the next
year, this suit was instituted based
on the modern doctrine that as a
riparian proprietor plaintiff was en-
titled to a reasonable quantity OF
the water of West Fork for irriga-
ton. and that interference with the
flow in the chlnnel Of that stream
by the defendants constituted an in
fringement of right. The answer OF
Davis and others admitted the rip
arian ownership but alleged that
not more than two-ninths OF the
water of Rattlesnake Creek ever
passed into the West Fork which
quantity flowed in the channel of
that stream to plaintiffs premises.
The trial court found, however.
that four-ninths was the measure Of
plaintiffs right and gave a decree
in accordance herewith.
We have carefully examined the
evidence which has been brought up
and ora ,nabIa - oor-oo .,,fkt AZ
conclusion thus reached. In the
year 1870, when a knowledge of
the condition of these streams
seems first to have been acquired
by white men, it is quite probable
that Middle and West Forks were
the only branches and that the lat
ter contained the greater quantity
of water The land through which
these streams flow is very level and
East Fork was evidently formed by
some obstruction in the bed of Rat
tlesnake Greek, whereby part of
the current was diverted to the left,
but when this occurred cannot be
determined from the evidence.
c. NJ. Foster as plaintiffs wit
ness. was interrogated as to the
head of East Fork as follows;
What is there in the main channel
OF Rattlespake Creek at that point
to divide the water, If anything?"
He answered: There is floatwood,
and log, and willows have grown
up and seemingly that foat-wood
and log has spread the waters of
the creek. 1t has that appearance.
The witness first saw that stream in
the year 1900, and. as we under
stand his testimony, East Fork was
then and for several years prior
thereto had been an existing chan
mel When that branch separated
from Rattlesnake Creek cannot be
ascertalned though 1t seems that in
the early settlement Of the country
the East Fork consisted of waters
flowing In gulch and It then had
no connection with the parent
stream. East Fork has undoubted-
ly flowed in the manner indicated
for longer period than that fixed
by the statute of limitations and
has become permanent stream.
Cottel V. Berry Az Ore. 59S; Har-
rington v. Demaris, 46 Ore. Ill.
The evidence tends to show that
plaintiffs predecessors in interest
had for many years annually cut
hay from section 36 in township 90
south of range 80 east but that nei-
ther they nor its agents had ever
made any effort to remove from the
channel OF Rattlesnake Creek the
drlftwood and log which naturally
floating therein during a food had
lodged, without the help of either
of the defendants, causing sediment
to be deposited, willows to be pro-
pagated at that place and water to
be diverted forming the East Fork.
Various estimates of the relative
quantities of water annually flowing
in the East Middle and West
Forks were made by witnesses who
appeared for the parties, but the
uncertainty Of the testimony on this
subject is apparent from a perusal
of the transcript. This obscurity
induces the conclusion that each
branch, except possibly the West
Fork, had for period of more
than 10 years prior to the com
mencement OF this suit, carried an
equal quantity OF water and that in
decreeing to plaintiff a flow in the
West Fork OF more than one-third |
of the volume Of Rattlesnake
Greek above the place of either di-
version, an error was committed.
The decree will therefore be mod
ified as here indicated, the defen-
dants to recover their costs and dis
bursements in this court and each
party to pay its and his own costs
and disbursements in the court be-
low.
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