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

.
porated at dates as follows, towit
The LaGrande Irrigation company
May 10, 1908; The Orc Dell Cana
Co., February 10, 1872; The Irrigation
Canal Co., October 4, 1888; The MAJ
Park Water Co., January 10, 1902;
The May Park Water Ditch Co., May
10, 1902; The Nessly Ditch Co., Feb
ruary 2S, 1898; and the L. Oldenburg
A. L. Richardson and ]. ]. Nessly
Ditch Co., September -, 1897, besides
the individually named persons, j. B
Stoddard, L. C. Pennell, ]. S. Chand-
Ter and N. K. West. 1t is stated in
the amended complaint that the lands
of plaintiff therein described are ma
turally arid, but when properly irri-
gated produce large and -remunerative
crops of the kinds mentioned A sim
liar allegation appears in each an
swer respecting the lands mentioned
in such answer and the testimony sus-
tains the truth of the statement wher-
ever it appears in any of the plead
ings. The plaintiff further AYERS that
during the month of June, 1865, he
went upon the river at a point par
| ticularly described and adjacent to
his land and, to use the language of
his pleading, appropriated five hun
dred cubic inches, miners measure
ment, under six inch pressure of the
waters of said Grand Ronde river, and
while the same was unappropriated
by others, diverted said quantity and
appropriation therefrom by means Of
dams, bitches and other means, to
and upon his said premises and lands
so occupied by him, for domestic,
stock and irrigation purposes, and has
ever since said date openly, notorious
ly adversely and under claim of right
and title, so maintained said appro-
priation and diversion for the bene-
llCldl uses dIOreSdlu.
The plaintiff further AYERS, substan-
TALLY, that although when not inter-
fered with, the river formerly and ma
turally flowed through and past his
lands at the rate of twenty thousand
inches, miners measurement, under
six-inch pressure, of late years dur
ing July, August and September the
stream has become so depleted in vol
ume that even when undisturbed by
upstream diversions it flows through
his land at no greater rate than five
thousand inches, measured as above
stated, and still during those months
of each year he needs and requires
for the purposes mentioned not less
than the quantity Of water originally
appropriated. He then charges that
for four years past all the defendants
except the LaGrande Irrigation Co.
and the natural persons named and
during the irrigating season of 1906
all the defendants, without exception,
by means of dams, pumps, bitches and
other appliances named, have so di-
verted the water of the river at points
above him without returning it and
allowing 1t to flow to his point of
diversion that he is deprived Of water
under his appropriation to such an
extent as to injure and dry up his
crops, inflicting upon him great Pc
cuniary loss, and that they threaten
to and, unless restrained by the
courts decree, will continue that
course of conduct all to his irrepara-
able damage. He prays for such a
decree and that his title to his alleged
appropriation be established and
quieted
During the hearing before the ref
cree appointed to take and report the
testimony it was agreed that the suit
should be dismissed as to N. X. West.
| Among the orders appearing in the
record is one sustaining demurrers
of plaintiff to answers of L. G. Pen
nell and j. S. Chandler, but neither of
such answers or any amended answer
on behalf of either Pennell or Chand-
ler appears in the record before us.
No answer of the LaGrande Irrigation
Co. has been sent to this court, al
though considerable testimony on be-
half of it and Pennell and Chandler
has been taken and reported. AS
pruned by motion and demurrers, the
rulings of the court upon which are
not questioned on appeal, the answers
Of the appealing defendant corpora
tions are in legal effect fashioned af-
ter the same pattern. Each of such
answers, after traversing the allega-
tions of the amended complaint al
leges the purposes and objects of the
corporate organization to be "the man
agement and control and the conduct
ing of the business of diverting waters
from the Grand Ronde river and con-
Quoting and carrying the same by
means Of dams, fumes and bitches to
the lands owned and occupied by its
stockholders hereinafter more par
ticularly described and dividing and
distributing the same to its stock
holders in certain proportions con-
trolled by its directors in accordance