Dry Gulch Ditch Co. v. Hutton

Oregon Supreme Court

Dry Gulch Ditch Co. v. Hutton

133 P.2d 601, 170 Or. 656

CourtOregon Supreme Court

DecidedApril 6, 1943

StatusPublished

Cited by2 cases

This text of 133 P.2d 601 (Dry Gulch Ditch Co. v. Hutton) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dry Gulch Ditch Co. v. Hutton, 133 P.2d 601, 170 Or. 656 (Or. 1943).

Pincite

Opinion

KELLY, J.

Plaintiffs are corporations, namely, the Dry Gulch Ditch Company and the Waterbury-Allen Ditch Company, and their stockholders. Defendants, Orin Hutton, Fred A. Phillips, Charles F. Duby, Wayne Phillips and Joseph Jackson constitute the partnership, which is the owner of Hogum Ditch. The State Engineer and the Water Master are also defendants, but are not active contestants herein, although both of them filed answers in the trial court. For convenience, the members of the partnership, owners of the Hogum Ditch, will be termed the defendants.

*659 Involved in this record are three natural water courses, namely, Eagle Creek, "West Eagle Creek and Goose Creek. There are four lakes, namely, Traverse, Echo, Eagle and Looking Glass lakes, and five artificial ditches, likewise involved. The ditches are called Hogum Ditch, the feeder ditch, the Sparta Ditch, the Dry Gulch Ditch and the Waterbury Ditch. Glendenning Ditch or creek, a part of which is used as a part of the Hogum Ditch, is mentioned and reference is also made to Balm Creek.

There are three separate and distinct areas which have been served with the water from these natural streams or water courses just mentioned. These respective areas for convenience will be referred to as plaintiffs’ lands, defendants’ lands and the Sparta lands respectively.

Eagle Creek, sometimes referred to as Main Eagle Creek, rises near the northeast corner of township 6, south range 43 east and flows, in a southwesterly direction until its confluence with West Eagle Creek near the northwest corner of section 28 in said township 6, south range 43 east. From that point Main Eagle or Eagle Creek flows in a southeasterly direction emptying into Powder Biver near the northwest quarter of the northeast quarter of section 35, township 9 south range 45 east.

West Eagle Creek is a tributary of Eagle Creek and rises near the northern boundary line of section 5, township 6 south range 43 east and flows in a southerly direction to its confluence with Eagle Creek as above stated.

Goose Creek has its source in the northern part of township 7, south range 43 east. Goose Creek flows in a southerly direction and empties into Powder Biver near the southern boundary line of section 32, town *660 ship 8 south range 43 east. By means of a dividing box, defendants distribute the water from Goose Creek to their lands which are located in the southwesterly part of township 8 south range 43 east.

Hogum Ditch taps West Eagle Creek near the southwest corner of section 9, township 6, south range 43 east and runs southerly about eleven miles emptying its waters into Goose Creek.

The feeder ditch is owned by the defendants and taps Eagle Creek, or Main Eagle Creek, near the southwest corner of the southwest quarter of the northwest quarter of section 15, township 6, south range 43 east, and furnishes water by means of a spillway to West Eagle Creek above the head gate of the Sparta Ditch which head gate is about two miles southerly from the head gate of the Hogum Ditch.

The Sparta Ditch has its head gate as just indicated, and when in operation, ran southerly to Sparta and the Sparta lands located near the center of township 8, south range 44 east.

The Dry Gulch Ditch taps Eagle Creek near the southeast quarter of the northwest quarter of section 17 in township 8 south range 45 east, runs southwesterly, connects with the Waterbury Ditch and in that way supplies plaintiffs’ lands with water. Plaintiffs’ lands are nearly all located in township 9, south range 45 east, a comparatively small portion being located in the eastern part of township 9 south range 43 east.

Traverse and Echo lakes are located at the head waters of West Eagle Creek and Eagle and Looking Glass lakes are located at the head waters of Eagle Creek. These four lakes just named were converted by the owners of the Hogum Ditch into reservoirs for the storage of water. The water from Traverse and *661 Echo lakes, when released, flow into West Eagle Creek; and those of Eagle and Looking Glass lakes, when released, flow into Eagle Creek.

Herewith is a rough draft of the premises with the four lakes omitted and the Glendenning Creek not designated. As stated, these lakes are northerly of the premises shown on the plat and are at the head waters of West Eagle and Eagle creeks.

Eagle Creek is a natural stream which drains the east and southeast slopes of a high range of mountains and known as the Eagle Creek or Wallowa Mountains. As stated, at its head it has two main forks, known as the west fork of West Eagle Creek and the main fork or Eagle Creek. From its head, it flows through a long, narrow canyon for some 25 or 30 miles before reaching Eagle Valley at the lower end of which it empties into Powder River. Its waters were first appropriated for placer mining purposes, but are now almost exclusively used for irrigation purposes. There are some 10,000 acres or more of irrigated lands lying in Eagle Valley and the immediate vicinity thereof. Some of the owners of these lands have earlier rights to the use of the water of Eagle Creek than those of the plaintiffs, whose lands are situate in the vicinity of Eagle Valley. Eagle Creek furnishes a large flow of water through the year but during the dry seasons of a few years, for short intervals of time, there has been insufficient water to fill the needs of all the users thereof.

As stated, Traverse and Echo lakes, above referred to, are located near the extreme head of West Eagle Creek and Eagle Lake and Looking Glass Lake near the head of Main Eagle Creek. These two streams come together some three or four miles below the point where defendants now divert water from West Eagle Lake

*662

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