The Hood River glacier. (Hood River, Or.) 1889-1933, 1921-09-01


plies. The principles of that case, ae
cording to the decision, are as follows
First, that an appropriation ma
be made by one for the use of another
Two, that it may be made for us,
upon lands which he does not thei
own, or which he does not contemplate
\ owning, and which he never does own.
Third, that the original intention il
valid and will support an appropria
tlon afterwards completed, if it con
template that the water filed upon foi
use upon certain lands then definitely
mad IN mind, and it be reasonably an
tlclpated that when the diversion is
ultimately completed and the water is
ready for application to that land. or
other land or uses which have been
substituted for the originally consid-
cred and intended land, such land will
be then, or within reasonable diligence
thereafter ready to receive it. f"
As to the diligence contemplated
by the case of the Nevada Ditch Co. /"
says Judge Wilson, there is no ques-
tion in the courts mind but that such
diligence was used by the irrigating
company, when all the exigences of a
new and undeyeloped country are con-
sldered.
In the second contest the Pacific
Power q Light Co. claims to have Sc
cured full title, through previous own
ers, the grants having been made by
the United States government prior to
the Desert Land Act, applying the
principle of appropriation, to two
tracts of riparian land. They claim
the right to the full flow of the stream
through their lands. The power con-
cern declares in its contention that its
requirements at certain seasons of the
year will demand the entire flow of
the river. The East Fork Irrigating
Co., however, contends that the guam
tlty of water that a riparian owner is
entitled TO is measured by the amount
which was being actually applied to
beneficial use at the time appropria-
tions are made by others or to such use
as is in reasonably immediate contem-
plation.
:" If the claim of the power company
be sustained, says the court, ''it will |
take all the water in the stream and |
the canals of the irrigating companies |
will go dry. This court is unwilling to |
contribute to such results; neither does
1t believe such to be the law as applied |
to the situation in hand; nor does it
think that the appellate court would so
declare.
''ln semi-arid regions the uses foE
which water is desired, and its conse-
quent value, have so enormously in
creased in recent years, that the courts
have been compelled, in order to be
consonant with principles of justice,
equity and right dealing, to modify
earlier decisions and readlast them to
vastly changed conditions. Courts
have no power to legislate but situa.
tions arise which require the extension
Of equitable and liberal rules so far as
it can possibly be done. Such a situa-
tion is, presented in the insant con-
test"
The power company's maximum
quantity of water at its fuckers |
Bridge plant is limited to GAO second {
ieet, while it is awarded only l40 feet
1t the Powerdale plant on the Lower
liver. I
In the third contest the Glacier Irri- I
rating Co. maintains that the Oregon I
lumber Go. was a trespasser on the I
Cast Fark of Hood river, in construct. 7
ng dam and appr0priating water for
se IN driving an electrical generator {
rovidiDg energy for sawmill at Dee. q
ecause of failure to post notice of its f
The Water Board In b
Is order of determination allowed the o
DregOn Lumber Co. 322 second feet of
later and set the rights of the lumber 4
ompany prior to those Of the Upper I
alley lrTigatlng concern. aud Judge
lllson confirms this finding.
The claim was made by the irrigat-
lg concern that the lumber company
'as making wasteful nse of the water.
n this point Judge Wilson says: %
This case has been under investi- y
gtion by the State Water Board for -
sveral years. The board has had the =
5sistance Of the state engineer and y
her technically experienced men: il ~
as caused extended detailed investi- .,
ations to be made Of the duty of wa ~
n, and the amount necessarily al n
wed for waste. As "A result of these p
Stended Investigations, made by tech ~
cally trained experts, 1t has estab- y,
shed the amount of water for the =,
mber concern. For this court5to set y,
ide that finding and to substitute \,
her figures would be to place the -
urt's own judgment, not trained in tb
gineering problems, over and above ~
e judgment of men who have made a a.
e study of intricate problems of this ~
n1. 1t is the duty of the court to -,
eide the law but it should be slow TO ~
ter the realms where minds techni- -
lily trained along complex and intri- ir
te mechanical problems govern. For H.
ch reason the findings Of the Water ~
ard on this phase Of the question %
u not be disturbed. -
In the final contest the decision of
dge Wilson is at variance, at the III
ly point in the adjudication, with the W
ate Water Board. The latter body
the acreage Of the Mount Hood
iter Co, the system Of which covers
ID around Mt. Hood postofFice, at
81 acres. Judge Wilson declared
J tights Of power and irrigating con- the
ms claiming adversely were prior col
I reduced this irrigable area 10 ABB Wa
es, TO protect, as be stated land al ma
.dy covered by water systems. b
5eO. X. Wilbur. secretary and at out
ney for the East Fork Irrigation fre
strict who has been Unidentified with COT
litig alton since it's origin declares
{ he is well pleased with the circuit Ida
ri decision.
.rnest c. Smith. who represented Wa
lous clients in the litigation, saws list
{ at the present juncture he does tha
desire tn make any statement. Un
GraYenStein Crop Is Fine -l Lnu
rews Of pickers began the harvest bee
7daV Of q rrrrr of Crar-arzfafr1 M, d, .-..