Mattis v. Hosmer

62 P. 17, 37 Or. 523, 1900 Ore. LEXIS 110

• Court: Oregon Supreme Court
• Decided: August 13, 1900
• Status: Published

Opinions

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

The testimony shows that in 1867 John Dick, James Hand, M. Winegardner, and John Pearson constructed the ditch in question from a point on the west fork of Foot’s Creek to its confluence with Salt Creek, a distance of about three miles, and diverted water from the former stream, which they used about two months to operate a placer mine, each owning an equal interest in the ditch and water right. This mine having proved unremunerative, Winegardner sold his interest in the ditch and water right to Pearson, who in 1868 transferred his interest, therein to one Orin Weare, who, with Hand, was then engaged in working a placer mine on public land at the head of the ditch, using water therefrom for that purpose. Hand, after working in the mine on Foot’s Creek about three years, sold his interest in the ditch and water right to one Silas Draper, who operated the mine with Weare until about 1873, when the latter, concluding that the land was not valuable for its minerals, made a homestead entry thereon, but did not irrigate it thereafter; for, having taken charge of a band of sheep at Evans Creek, he returned to his claim in the irrigating season about every six months, where he remained only a day or two at a time, so as to avoid an abandonment thereof (Rev. St. U. S. § 2297); and, having made final proof of his settlement and cultivation, he, on April 22, 1879, conveyed the premises, with the appurtenances, to the plaintiff, who has ever since used a part of the water from said ditch to irrigate his crops, and for four years immediately preceding the commencement of this suit used the water therefrom to operate a placer mine on his land. The defendant Nelson Hosmer on September 18, 1879, secured from George W. Lance a deed conveying certain land, a ditch constructed thereto from the west fork of Foot’s Creek across the north boundary of plaintiff’s land, and the right to use for the purpose of irrigation one-half of the water flowing in the creek at the head of said ditch. In 1868 Dick sold his interest in the ditch, which he helped to construct, to one Alexander Orme, who, in 1877, having secured whatever interest Draper had therein, made a homestead entry on one hundred and sixty acres of land, across which the ditch was dug; and in 1879, claiming to be the sole owner of the ditch and water right, he sold the same and relinquished his homestead to one Charles T. Anderson, who, on April 12, 1881, transferred tlie same by bill of sale to Hosmer, who thereupon filed upon the land so relinquished, changed his point of diversion from the Lance ditch to the old ditch near the south boundary of plaintiff’s land, to enable him to conduct the water to a greater elevation, and for more than fifteen years he has constantly used the water flowing in the ditch to irrigate his crops.

1. It is contended by plaintiff’s counsel that the testimony shows that his client was in the exclusive possession of the old ditch, and used the water flowing therein to irrigate his crops, from the time he secured Weare’s deed until the point of diversion was so changed, after which Hosmer used the water by his permission, and never, made any claim thereto until December 16, 1896, when he posted a notice to that effect; and hence the court erred in finding, in effect, that since Hosmer took possession of the ditch he had expressly permitted the plaintiff, at his request, to use the water to irrigate his garden and growing crops. George W. Lance, as defendants’ witness, testifies that prior to executing the deed to Hosmer he owned the first right to the use of the water in the west fork of Foot’s Creek, and that in 1879, the water therein becoming low, he discovered that plaintiff was diverting it, which he forbade, and took out the box used therefor. This testimony is not contradicted in any manner, and hence we conclude that Hosmer secured by Lance’s deed the right to use one-half of the water flowing in the creek, for irrigation. This deduction is strengthened by the circumstance that Weare never used any water to irrigate the crops on his homestead after filing thereon, from which it may be reasonably inferred that he knew that Lance’s predecessor enjoyed the superior right to the use of the water for irrigation, and that plaintiff took by his deed no greater interest in the premises than his grantor possessed. Hosmer, having the superior right to the use of thq water, is entitled thereto, unless deprived thereof by plaintiff’s adverse use. Some of the testimony upon which the finding complained of is predicated was admitted over objection, and is wholly incompetent. Thus, without proving any general agency, several witnesses were permitted to testify that one Lewis Silbereisen, who lived with the plaintiff, made statements which would seem to recognize Hosmer’s right to the exclusive use of the water in the old ditch, and that at Silbereisen’s request Hosmer permitted the plaintiff to use the water to irrigate his crops whenever it could be spared by him for that purpose. This testimony, with that of other wit-messes whose authority to speak for the plaintiff upon this subject was not established, we are compelled to disregard.

Considering the admissible testimony on this branch of the case, Mrs. Hosmer, as a witness for defendants, testifies that on a certain Sunday, about nine years prior to the trial, the plaintiff, at their house, requested her husband to let him have the use of the water to irrigate his garden. Hosmer, as a witness in his own behalf, corroborates his wife’s testimony in this respect, and also testifies that on another occasion, as he was going to the head of the ditch, the plaintiff asked him for the use of the water to irrigate his crops. The plaintiff denies the requests so imputed to him, and testifies that he permitted Hosmer to use the water from the ditch to irrigate his crops. It will thus be seen that the testimony from which the finding adverted to was made is conflicting and irreconcilable; but the court below had the advantage of seeing the witnesses and of hearing them testify, thereby being enabled to observe their manner and bearing while under examination, and hence is better able to reach a correct conclusion respecting a disputed question of fact than this court can possibly be from an inspection of the transcript. To have reached a different conclusion would, in our judgment, have been against the weight of evidence ; for six uncontradicted witnesses testify that they are acquainted with the plaintiff’s general reputation for truth and veracity in the vicinity in which he lives, and that such reputation is bad. From a careful examination of the testimony, we are satisfied that, Lance having conveyed to Hosmer the use of one-half of the water in the creek, each is entitled to the use of a moiety thereof, to irrigate his cultivated lands, and that plaintiff is not entitled to the use of any water therefrom until the needs of the prior appropriators are fully supplied ; and hence that part of the decree which gives Hosmer one-half of the water flowing in the creek at the head of the ditch during the irrigating season must be affirmed.

2. Another question to be considered is the relative rights of the parties to the use of the water flowing in the creek during the winter or mining season. The use of water for irrigation is not necessarily incompatible with the use thereof for mining, for the growth of plants in the arid region is stimulated by the application of water in the spring and summer to the soil which produces them, while the separation of gold from the baser material in which it is imbedded, by méans of water secured from small streams, is usually accomplished with better results when prosecuted in the rainy or winter season ; and, this being so, the agriculturist and the miner might own and enjoy separate uses of water from the same stream without interferring with each other’s rights. The appropriation of water to a beneficial use is founded upon the rule of necessity, which, when satisfied, becomes the measure of the right, whereupon subsequent appropriators may use the surplus of that to which the prior appropriator is entitled, when not necessary to his use : Ortrman v. Dixon, 13 Cal. 34; McKinney v. Smith, 21 Cal. 374; Smith v. O'Hara, 43 Cal. 371; Edgar v. Stevenson, 70 Cal. 286 (11 Pac. 704); Barnes v. Sabron, 10 Nev. 217.

3. Hosmer’s right to the exclusive use of the water for mining purposes is based upon the assumption that Weare transferred his interest in the ditch and water .right to Draper, the only evidence of which is the testimony of Alexander Orme to that effect. This witness, on cross-examination, in answer to the question, “How do you know that Draper got Weare’s interest?” said: “Draper told me so. He explained it to me. Q,. Is that the only way you know whether Draper owned any of that ditch, — simply what he told you? A. That is all; yes.” It will be remembered that Weare secured from Pearson the right to use during the mining season an undivided one-half of the water in the old ditch, and having enjoyed that right about five years, in operating a placer mine upon the land to which he thereafter •secured a title, the water was thus appropriated to a beneficial use; and hence the turning point, so far as it relates to the use of the water for mining purposes, is whether such right was conveyed to plaintiff as an appurtenant to- the land, or was transferred to Draper, from whom it passed by mesne transfers to Hosmer. The plaintiff, as a witness in his own behalf, testifies that when he made a bargain to purchase his land Weare told him that the ditch belonged to the premises and was . his property, and that Draper stood by and said nothing. Alexander Orme testifies that he purchased Draper’s interest in the ditch and water right in 1877, and, as such purchase was made before plaintiff secured his deed, Draper had no interest in the property, and his silence cannot be construed as an estoppel against Hosmer, who succeeded to whatever interest he had therein : 2 Herman, Estop. § 939.

4. At the time it is claimed that Weare transferred his interest to Draper, the statute then in force provided that ditches, during the times they were used for mining purposes, were to be regarded as real estate, and, in their sale and transfer, governed by the law applicable to that class of property: Hill’s Ann. Laws, §§ 3833, 3834.

5. It does not appear that Weare ever received any deed to an undivided one-half or other interest in the ditch and water right from Pearson, but as Mattis and Hosmer both assert title thereto from Weare, as a common source, they are estopped from denying his title : Herman, Estop. § 593. Notwithstanding mineral lands aré not subject to entry and settlement under the provisions of the homestead law of the United States (Rev. St. U. S. § 2302), George W. Bailey, plaintiff’s witness, who lived on the west fork of Foot’s Creek, from 1866 to 1880, testifies that from 1868, for about ten years, Wearé, having cleaned out the old ditch at its upper end, used water therefrom to operate his mine, and that he continued to use the water for mining purposes more or less every year while the land remained in his possession. This shows that Weare applied the water to the land during the mining seasons, thereby making it appurtenant to the premises. No evidence was offered tending to show that Draper secured a deed from Weare, and as he could not be deprived of his interest in the ditch during the time it was used for mining purposes, except by his deed, his title thereto was not transferred to.Draper, but passed, as an appurtenant to the land, by his deed to the plaintiff.

6. Alexander Orme supposed, from John Dick’s representation and sale, that he secured an undivided one-half interest in the ditch and water right; but, Draper having purchased from James Hand an undivided one-fourth interest therein, Orme undoubtedly secured no greater' interest by Dick’s sale. But having purchased Draper’s interest, of which he took possession, and thereafter made a settlement and entry upon one hundred and sixty acres of land as a homestead, across which the ditch was constructed, he had the right to apply the water thereto; and when he surrendered his interest to Anderson, who transferred the same to Hosmer, the latter took an undivided one-half interest in the ditch, as a tenant in common with the plaintiff in the use of the water for mining purposes ; and, no evidence having been introduced that plaintiff had knowledge of any adverse claim on the part of Hosmer, his possession cannot be considered adverse, unless there was an actual ouster, or some equivalent act showing an intent to exclude the cotenant: Freeman, Co-Ten. § 221; Colman v. Clements, 23 Cal. 245; Unger v. Mooney, 63 Cal. 586 (49 Am. Rep. 100); Thomas v. Glendinning, 13 Utah, 47 (44 Pac. 652); Smith v. North Canyon Water Co. 16 Utah 194 (52 Pac. 283). The court having erred in decreeing that Hosmer was entitled to use for mining purposes all the water flowing in the ditch and in the said gulches, the decree will be modified, and one entered here giving plaintiff an undivided one-half of the water therefrom during each mining season. Modified.