Jenkins v. Owyhee Ditch Co.

152 P. 1194, 78 Or. 277, 1915 Ore. LEXIS 41

• Court: Oregon Supreme Court
• Decided: November 23, 1915
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

1, 2. If the plaintiff can now water the same land that could be irrigated before the enlargement of the ditch, and if his opportunities for using the water have not been lessened or impaired, then Jenkins cannot complain, even though it be assumed that the amount of land which he irrigated and the extent to which it could be irrigated before the widening of the ditch determine and measure the absolute legal right which he now possesses. The improvement which the plaintiff complains of was necessary and in the interest of the stockholders generally. Willows had been permitted to grow along the ditch. The hanks had caved off. - Sediment and sand had accumulated, and the canal was in poor condition. Breaks occurred frequently. Stockholders living below Jenkins were constantly complaining because of the lack of water; and one witness testified that he had seen the Owyhee Ditch utterly dry four miles below the Jenkins property when the upper users were drawing heavily on the supply. The canal had been cleaned down to the grade line upon which it was originally constructed, but the ditch had not been deepened below that line. From the intake to the outlet the supply of water is now sufficient for all the stockholders. Peter Tensen a witness for plaintiff, says that there was a good deal of trouble getting water through the ditch before 1911; that the obstructions in the canal tended to impede the flow of water, to dam it up, and “make it stand higher than it does now”; but that “it is an excellent ditch now. ’ ’

After the ditch was cleaned and widened the water level was lower than before 1911. It may fairly be inferred from all the testimony that the accumulated obstructions in the ditch interfered with the flow of the water and tended to raise it; and it also appears from the evidence that the water level was lowered as a result of widening and cleaning the ditch, notwithstanding the fact that the flow was increased about 50 per cent. Estimates of the extent to which the water was lowered range from 6 to 16 inches. Witnesses for the plaintiff testified that the water level has gradually raised above the stage maintained in 1911.

Water for the alfalfa and wheat fields has been taken from the ditch through a tap near the point where the canal enters the premises of plaintiff, and it is then carried through a lateral dug in the ground to the two tracts. The alfalfa field had been cultivated for five or six years prior to 1911, while a part, but not all, of the wheat field had been cropped since 1908. There is much conflicting evidence relative to the irrigation of the land and the ease or difficulty with which it could be watered; but a careful examination of the entire record will furnish ample support for the conclusion that all of the alfalfa land and all of the wheat field could not be irrigated at any and all times prior to 1911, and that it was necessary to take advantage of the occasions when the water would be at a high stage in the ditch in order to irrigate the two tracts. Fréd Klingback, who was ditch rider in the years 1906, 1907,1909 and 1910, when speaking of the alfalfa field, testified that:

Jenkins “irrigated it every year when he would catch the water high enough to irrigate. Sometimes the crop would dry pretty near completely out. * * Every year he had trouble in getting water on that alfalfa field,” and that “every year there would be part of it dried out.”

On June 21,1913, levels were run by competent civil engineers, and they ascertained that approximately only about one half of an acre was at that time above the surface of the water in the ditch; that about five acres were lower, but not to exceed nine inches lower, than the water level in the canal; and that the remainder of the land is more than nine inches lower than the water level in the ditch. Peter Tensen, when a witness for plaintiff, stated that:

“Mr. Jenkins could irrigate the same land to-day that he could prior to 1911, but he couldn’t irrigate it in 1911, on account of the water at that time being lower.”

The plaintiff contends that he was not able to nse the water in 1911, although it is admitted that the tenant on the premises failed to irrigate when the superintendent told him that the water in the ditch was high enough for that purpose, and he did not attempt to irrigate until the water had lowered with the fall in the Owyhee River. In July, 1912, when the water was about 17 inches below the high-water mark appearing on the bank, levels were run on the alfalfa and wheat fields by engineers who discovered that even at that stage of the water, when the average level was higher than in 1911, though not so high as in 1913, all but three or four acres could be irrigated by flooding; and the evidence clearly shows that the three or four acres mentioned could be watered by a series of parallel ditches.' The case of Miller v. Imperial Water Co., 156 Cal. 27 (103 Pac. 227, 24 L. R. A. (N. S.) 372), cited and relied upon by plaintiff, is not analogous to this suit, because here no attempt is being made to deprive Jenkins of his rightful share of the water; but he can still use the water furnished by the ditch, and he can still irrigate as much land as he could prior to 1911, although he may be obliged to resort to corrugation instead of flooding for a small portion of his land.

3. Assuming even that Jenkins will be obliged to run a new lateral for the alfalfa field, and likewise conceding that it may be necessary to corrugate a small portion of the wheat field, nevertheless the plaintiff does not, under the circumstances presented here, have the absolute right to compel the defendant to raise the level of the water in the ditch and maintain it where it was before. The conditions now existing resulted from a necessary improvement which was made in the interest of all the stockholders and the installation of a stop-gate would interfere with the flow of the water and tend to thwart the very purpose which the improvement was designed to accomplish. The rights of plaintiff are no greater than the rights of lower users. No one share of stock can be favored at'the expense of another share of stock; and, moreover, all the stock owned by Jenkins was voted for the improvement of the ditch. The. enlargement of the canal has been the means of supplying water to those who could not obtain it prior to 1911, although they were just as much entitled to receive water as was the plaintiff.

4. It must be remembered, too, that the shares of stock were not dedicated to any described land; that the stock held by Jenkins was not issued to him as an appurtenance to his land; and that, therefore, the rights and obligations of the stockholders, when considered in relation to their use of the water, are peculiarly reciprocal.

The evidence justifies the conclusion arrived at by the Circuit Court, and the decree is affirmed.

Affirmed.