Gardner v. Dollina & Elliott

288 P.2d 796, 206 Or. 1, 1955 Ore. LEXIS 181
CourtOregon Supreme Court
DecidedOctober 12, 1955
StatusPublished
Cited by6 cases

This text of 288 P.2d 796 (Gardner v. Dollina & Elliott) 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
Gardner v. Dollina & Elliott, 288 P.2d 796, 206 Or. 1, 1955 Ore. LEXIS 181 (Or. 1955).

Opinion

TOOZE, J.

This is a suit for an injunction and other relief, brought by William W. Gardner and Jessie Gardner, his wife, as plaintiffs, against G. W. Dollina, W. C. Elliott, and Chester I. Elliott, as defendants, and involves rights, to the use of waters from two springs located upon lands owned by plaintiffs in Grant county, Oregon. Upon motion of the plaintiffs, the suit was dismissed as to defendant Dollina.. After a trial upon *4 the merits, the circuit court entered a decree in favor of defendants Elliott, and plaintiffs appeal.

Water district No. 6 of the state of Oregon was established pursuant to the provisions of § 116-208, OCLA (OES 540.010), and embraces all the lands and waters hereafter mentioned. The defendant Dolliná is the duly appointed watermaster of said district, having been appointed as such by the state engineer under the provisions of §116-301, OCLA (OES 540.020).

The John Day river is a substantial stream of water flowing in a general westerly direction through Grant county, Oregon, and on west to its confluence with the Columbia river. This river has a large number of tributaries. In the section of Grant county involved in this suit, there are a number of streams of water tributary to the John Day river which flow in a general northerly direction from their respective sources to their confluence with said river. Among those streams of water in their order from east to west are the following: Pine creek, Dean creek, Dissel creek, Big Dog creek, Little Dog creek (flows into Big Dog creek), and Little Pine creek.

Prior to and in 1864, as well as subsequently, extensive mining operations were conducted in Sec. 34 of tp. 13 S. R. 32 E. W. M., and Secs. 6 and 7 of tp. 14 S. R. 32 E. W. M. in and near Canyon City, all in Grant county Oregon. In connection with said mining operations and for use as a part thereof, there was constructed in 1864 a contour ditch, known as the Sam Hillis ditch, for the purpose of carrying water from Pine creek to the mining properties. The ditch commences in See. 14, tp. 14 S. R. 32 E. W. M., and the water therein taken from Pine creek flows in a general northerly direction to its confluence with Dean *5 creek; for a short distance north nse is then apparently made of the channel of Dean creek; on leaving Dean creek, the ditch meanders in a general westerly direction to the scene of the mining operations, crossing Dissel creek and Big Dog creek. The waters of the ditch are carried across Dissel creek and Big Dog creek by the use of flumes, and at other places along the eight-mile route of the ditch, flumes were constructed to carry the water when it was impracticable to dig a ditch. However, the greater portion of the ditch follows along hillsides or mountainsides, with the hillsides or mountainsides being utilized for the southerly bank, and the northerly bank being built up of rock and dirt which evidently was taken from the side of the hill or mountain, or from the ditch itself. No eyewitness testified as to how the ditch was constructed nor as to when it was constructed, but there is ample evidence in the record (including its description, as existing within the memory of eyewitnesses, and photographs of its condition at the time of trial) from which the method of construction may reasonably be inferred. In his memorandum opinion filed upon the trial’s conclusion, the judge stated: “There was no proof before the Court that this ditch was constructed in 1864”. In this statement, the trial judge erred. There was such proof.

The defendant W. C. Elliott testified as follows:
“Q Do you know the Hillis Ditch as it runs through that country up there?
“A Yes, I do. My father and a man by the name of Hillis dug that ditch — started work on that ditch in ’64.”

At the time this testimony was given, the defendant W. C. Elliott was 74 years of age. It is mani *6 fest, therefore, that he was not testifying to something that was within his own personal knowledge, hut as to an event he learned about from hearing others state the fact. It was clearly hearsay testimony, but was admitted without objection. Being admitted without objection, it has some probative value. Shephard et ux. v. Purvine et al., 196 Or 348, 373, 248 P2d 352. Further, the record upon the trial shows beyond all question that there was no dispute between the parties as to the approximate time the ditch was originally constructed.

The Hillis ditch crosses lot No. 1 and runs northerly along the east line of lot No. 2, in Sec. 5, tp. 14, S. R. 32 E. W. M. At that point it makes what is referred to in the record as a “hairpin turn”. The plaintiffs own lot No. 1, and also own the Hillis ditch. Little Hog creek flows northerly from a point near the apex of this hairpin turn, crossing lands of plaintiffs located in Sec. 32, tp. 13 S. R. 32 E. W. M., and also lands of defendants situate in Sees. 29 and 32, tp. 13 S. R. 32 E. W. M.

Immediately south of the Hillis ditch at the apex of .the hairpin turn are located what have been designated by the parties as the “Seep Springs”, and which we will hereafter designate as the seep spring. There is a canyon running southerly and up-grade from the ditch at,the hairpin turn, and the first water noted in connection with the seep spring is approximately 75 feet south in this canyon (not 100 yards as stated by the trial judge), although most of the water is shown close to the ditch. This canyon also continues northerly down-grade from the ditch, and it is in this canyon that Little Dog creek rises. If the waters from the seep spring were not obstructed by the ditch, they would naturally flow down the canyon in a northerly direc *7 tion to and into Little Dog creek. However, the north bank of the ditch, undisturbed, effectively prevents those waters from reaching Little Dog creek, and their only outlet is the ditch itself (except, of course, such of the waters as may seep through the ditch or may be conducted over or through the ditch by artificial means).

About 200 feet northeasterly from the seep spring and in the south bank of the Hillis ditch is located what the parties designate as the rock spring. In his memorandum opinion, the trial judge referred to this spring as follows: The other spring claimed by plaintiffs is called Rock Spring. It also starts in Section 5, about one-fourth mile east of Seep Spring. Its source is very close to the Sam Hillis Ditch.” (Italics ours). The trial judge is in error as to the distance between the two springs. However that may be, if it were not for the north bank of the Hillis ditch, the waters of rock spring would flow down the easterly side of the canyon above mentioned and eventually find their way into Little Dog creek. Because of the north bank of the ditch, their only outlet is into the ditch itself. Sometime after plaintiffs purchased their lands and the Hillis ditch in 1942, plaintiff William W. Gardner blasted the rock bank at the rock spring in an attempt to enlarge the flow of water from the spring, but the water from the spring did not then, nor did it thereafter, accumulate at a level much above that of the bottom of the ditch.

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Bluebook (online)
288 P.2d 796, 206 Or. 1, 1955 Ore. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-dollina-elliott-or-1955.