Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-17

have 500 inches, miners measure
ment, flow down their ditch; that
thirdly, defendants have enough wa
ter to operate their mill and to irri-
gate not to exceed 100 acres of land
under their ditch after which, fourth
ly, plaintiffs should have $50 inches
of water, making the total of 1880
inches claimed at the outset. The
defendants were enjoined from inter-
fering with plaintiffs rights as thus
defined and we're cast in costs and
disbursements amounting to $10S3.15.
The defendants appeal.
Burnett, j. The Umatilla River is
an unnavigable stream which takes
it's rise in the Blue Mountains near
the eastern boundary Of the county
bearing its name, and after receiving
various affluents, flows in general
north to northwest course in passing
the lands mentioned in this suit The
holdings of the plaintiffs are on the
west side and premises of the de-
PENDANTS are on the east side of the
river. After the fall rains have set
in and until the melting SHOWS Of
the mountains are gone in the early
summer, there is enough water for
all purposes; but by July the river
gets low and, until some time in Sep
tember, there is scarcity of water
for late crops, such as the second
and third crops of alfalfa. and not
enough to operate the defendants
mill to its full capacity,
The pleadings cannot be construed
into a suit to ascertain and declare
the respective rights and priorities of
the parties in the use of the waters
of the river The plaintiffs pray for
the utter demolition of the defen-
dants dam so that the whole river
may flow without hindrance to the
intake of the Allen ditch; while the
defendants, by the erection of con-
crete dam entirely across the river
above the diversion plant of plain
tiffs, coupled with their avowed pur-
pose to continue that policy, evident
ly intend to keep the water entire
ly away from the plaintiffs when
their need is the sorest In brief
each party wants all the water.
Both plaintiffs and defendants
claim as appropriations and not as
riparian owners. The defendants ar
que that at the time the plaintiffs di-
verted the water in the first instance,
the stream was not one from which
water could be appropriated in the
legal sense of the word because the
riparian ownership of the lands be-
low the point of diversion had passed
from the general government into
private hands prior to the Act of
Congress of March 8, 1877, known as
the Desert Land Act, and prior also
to the diversion upon which plain
tiffs found the inception of their
claims. The defendants construe the
act mentioned to mean that whereas,
before its enactment, appropriation
could only be made where all the
lands adversely affected were in the
public domain, now since it's passage
the first appropriation may lawfully
take the water of a stream without
regard to whether the lower riparian
owners are private individuals or the
general government; but that plain
tiffs cannot claim the benefit of that
Act because they diverted the water
before its passage. But we think
that neither the plaintiffs nor the de-
PENDANTS are in a position to raise
this objection to appropriation as
against each other because none of
them is riparian owner and the
claim on both sides is that of appro-
priation. No one can claim both as
a riparian owner and as an appropri-
af q I,
be one or the other of those charac-
ters he cannot be both. Davis v.
Chamberlain, 81 Or. 304. Some ripar-
ian owner defending or attacking as
such might, in a proper case, raise
that question, but no such party is
before the court in this proceeding.
We conclude that as between the par
ties and on the record before us the
waters of the Umatilla River at all
the times mentioned in the pleadings
were the subject of appropriation in
the legal sense of the word.
The plaintiffs assert title to the
use of 1880 inches of water and Of
fer as proof of that amount the de-
cree of this court in the case of the
Oregon Land and Construction Co. v.
The Allen Ditch Co., a plaintiff in
this suit. The case is reported in
Al Or. 209. The plaintiff there as a
lower riparian proprietor sought to
enJoin The Allen Ditch Co. from di-
Vertlng the water of the river in
question away from the down stream
lands of the plaintiff; but that suit
was successfully defended on the
ground that the defendant had ac-
quired title by prescription to the use
OF 1850 inches of water as against the
! plaintiff, having used the water ad-
versely for more than 10 years con-
tinuously. But the conclusion
reached in that litigation bound only
the parties to that suit and hence
cannot be used by the successful con-
testant there as evidence in it's favor
against the defendants here who are
/ strangers to that proceeding. Ex-
cluding that decree from the evidence
here, as we ought. no definite testi-
mony remains even as to the aggre-
gate amount of water diverted or
needed by the plaintiffs, much less as
to the particular amount required or
useful for the separate tracts owned
by the several individual plaintiffs.
Equally indefinite is the testimony
on behalf Of the defendants relating
to the actual amount of water origi-
nally appropriated by their prede-
cessors in title to the mill property
or requisite for the purposes in con
temptation at that time. In 1883 Mr..
/ KoontZ, the founder Of the ,,,illino In
dustry there, built a Touring mill