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

is from 10 to 20 feet deep below the
level Of the adjoining land and sub
irrigation is not possible, and irri-
cation by means Of dams is much
more difficult than when the place
was first settled For time the two
Huntleys used the same ditch and
there does not seem to have been any
scarcity of water on either place for
several years. In 1879 1t transpired
upon survey that the land occupied
by Harrison Huntley vas school
section and he conveyed his possess
ory rights to Charles Huntley who,
on January IA, 1879, received a deed
from the state to the lands now oc-
cupied by plaintiffs In 1880 Charles
Huntley conveyed a portion Of this
tract by warranty deed to w. Lair
Hill, n. H. Gates and Frank Clarno,
and in 1882 conveyed the remainder
Of the tract to Hill and Gates by
warranty deed. Plaintiffs deraign
title from Hill, Gates and Clarno. We
do not think that the evidence indi-
cate a prior appropriation by defen-
dant. And as water. in the arid
parts of the state, is the life of the
land, we believe that Hill, Gates and
Clarno took the land in view of the
tillable Improvements upon it, includ-
ing the ditches and water facilities
placed there by Harrison and Charles
Huntley, and that the right to use the
water, as Harrison and Charles had
heretofore used it, became and was
appurtenant to the land.
1t not appearing that Charles Hunt
ley ever did any act which notified
plaintiffs or their grantees that he
intended to claim the right to con-
stantly divert and use all the waters
of the stream, or to deny their right
to use the same share that had been
employed beneflcially while he and
Harrison Huntley occupied the land,
the statute of limitations would not
attach from the mere fact that at
times defendant used all the water of
the creek since such was his privi-
lege unless the grantors of plaintiffs
were in need of it. Nor is adverse
users as such specifically pleaded,
the defendant making his case upon
prior appropriation, which he has
failed to prove. We see no reason
why, even in cases involving prior
and subsequent appropriations of wa
ter, the courts cannot require the ap-
propriators to alternate in the use of
the water The time when water may
be used recklessly or cerelessly has
passed in this state. With increas-
ing settlement water has become too
scarce and too precious to justify
any but an economical use of it. An
appropriation has only the right to
use so much as his needs require
and at the time his needs require.
And If these are satisfied by use of
the whole flow every other day, or
every alternate week, he ought not
to be heard to complain. 1t is evil
dent that from some cause or from
variety Of causes the waters of
Pine creek are diminishing in volume
at the point where the parties to this
controversy are residing. 1t is now
probable that to divide the water,
without alternating, would injure
both parties. A test, since the pre-
liminary order was made in this case
in 1906, indicates that by the method
adopted, both parties can raise good
crops and both prosper.
1t must be conceded that there is
a paucity Of authority on the subject
of requiring rotation in the use Of
water between appropriations. The
Tremedy has frequently been applied
in cases of dispute between riparian
proprietors and 1t is difficult to dis
cern any difference in principle be-
tween the rights of riparian pro-
prietor and those of an appropriation
in the beneficial use of water. The
trend Of the later decisions is to ap-
Iply this method where practicable
In Helphery v. Perrault, IL Idaho
451, the court observes:
| Rotation in irrigation undoubtedly
tends to. conserve the waters of the
state and to increase and enlarge
their duty and service, and is, conse-
quently a practice that deserves en-
couragement in so far as it may be
done within legal bounds" In Wig
gins " Muscupieabe Land & Water
with approval in Hough V. Porter, II
Or 318, the court required riparian
proprietors to rotate in the use Of
water and in Becker v. Marble Irr
Co. Is Utah 225, which was a suit be.
tween appropriations, the court ap-
piled the doctrine of rotation.
The weight of evidence indicates
that there is no material difference In
character between the lands Of
plaintiffs and defendant and if de.
fendant is unable to produce as goot
crops on his land as plaintiffs are
producing with the same quantity Of
water upon double the acreage, Il
must be attributed to his methods o.
farming and irrigation, rather thar
to the lack of water. The decree Is
affirmed.
Bean, j., took no part in this de-
clsion.
In ~, fbo eonIc 20 ti,,,a -,