Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-02

ises. This allegation. common to all
their answers in the nature of cross
bill against the plaintiff, advances the
theory that the corporate appellants
are mere holding concerns sustaining
only an ancillary or administrative
relation to the successors Of the orig
inaI appropriations OF water above the
plaintifrs land. It was evidently
framed for the purpose Of enabling
the corporate appellants to trace their
alleged title by appropriation back to
the original settlers and to prescribe
under their acts in the use OF the
water The doctrine has been laid
down by this court in Oregon Construc
ton Co. " Allen Ditch Co., IL Or 2O9,
that where individual appropriations do
not surrender their rights to a cor
poration which is organized merely to
facilitate distribution Of the water
among them, there exists such a priv
ity OF estate as to enable it to defend
in their behalf in litigation affecting
their rights to the use of the water.
The reason for this holding is found
by analogy in the provision of our
statute allowing a trustee of an ex-
press trust to sue without joining with
him his cestuy que trust. L. o. L.,
Sec. 20. But this does not dispense
with the requirement that If such are
to be the objects and purposes of the
company they should be specied in
their articles of incorporation.
The powers of a corporation are
defined and limited by its articles.
Especially as against a stranger, it
cannot go beyond them. Oregon Rail-
road & Navigation Co. v. oregonian
Ry. Co., 1870 U. S. 1; State v. Portland
Gen. Elec Co., 50 Or. 5O2. The articles
of the Orc Dell Canal Co. show that
the business in which 1t proposed to
engage was "the appropriation of the
waters of the Grand Ronde river by
ditch or canal" which is described
| in general terms "% said water
to be used for irrigation and such
other purposes as may be deemed eX-
pedient and profitable by said cor
poration." The Irrigation Canal Co.
was incorporated by articles which
declare that "the object of said COM
pany and the enterprise in which it
purposes to engage is the taking of
five thousand inches Of water out Of
Grand Ronde river in Union county,
Oregon, by means of canal or bitches
for the purpose of irrigation" The
| Nessly Ditch Co. declares that "The
purpose for which said corporation
is formed and the business in which
1t proposes to engage is to construct,
maintain and operate irrigating
bitches; to buy, sell or rent real es-
tate; to irrigate the same at any
place within the state of Oregon, or
to do any thing or act necessary to
carry out the purposes and objects of
this corporation" The articles of in
corporation of the May Park Water
Ditch Co. are not in evidence and
hence 1t is without proof of its con-
troverted allegation concerning its
corporate powers. These article above
quoted do not prove the character in
which the corporate appellants appear
on the record. The pose substantially
as trustees or holding concerns, but
their charters show them to be indie
pendent institutions operating in their
own rights, If they had organized
with the intention of usurping the
possession of private ditch owners
their articles need not have been
stronger They certainly do not indi-
cate any ancillary relation to those
who took out water for private use
In the early days in that country. AS
far as their characters are disclosed
by the evidence, they stand before
the court in their own independent
rights, without obligation to any one
not party to the suit.
Neither do any of the corporate
appellants show any transfer to them
selves, either directly or by mesne
conveyances from any original settler,
of any water right or real estate to
which such right is appurtenant.
As against the plaintiff, the evidence
is quite consistent with the theory
that these defendants either jumped
the water rights and bitches of the
original settlers or took possession
of some abandoned works for their
own use. Neither of these would give
them priority over the plaintiff, for it
would not amount to such a tacking
as to relate back to any prior appro-
priation.
The deduction is that, so far as pri
ority over the plaintiff is concerned,
none of the corporate appellants can
claim before the date of its incorpor
alton. Bearing in mind the dates on
which they were severally incorpor
ated' we see that none of them ante
dates the plaintiffs appropriation in
1865 AS to the defendant, Stoddard
who has owned since March 26, 1906
part OF the Jacob Nessly homestead.
the earliest date fixed by any witness