McCann v. Wetherill

47 P. 100, 31 Or. 589, 1896 Ore. LEXIS 11

• Court: Oregon Supreme Court
• Decided: December 21, 1896
• Status: Published

Opinion

Per Curiam.

This is a suit brought by Edward McCann to enjoin Alexander Wetherill from obstructing or interfering with the flow of water in and through a certain ditch by which a portion of the waters of Democrat Gulch, in Jackson County, is carried .on to the lands of plaintiff, and used by him for irrigating purposes. The plaintiff claims title and the right to use three hundred inches of the water flowing in the gulch by adverse user of himself and grantors for more than fifteen years. The answer denies the facts alleged, and sets up as a defense that Democrat Gulch is not and never has been a natural water course, but that all the water flowing therein was diverted from Althouse Creek into said gulch, and appropriated for the purposes of irrigation and for stock and domestic use by defendant’s grantors and predecessors in interest more than- twenty-five years ago, and has been continuously used by them for such purposes ever since and that any use of said water by the plaintiff and his grantors was a permissive one only. The reply put in issue the allegations of the answer, and upon the issues thus joined a trial was had resulting in a decree in favor of the defendant, from which the plaintiff appeals. The issues^ involved in the case are wholly questions of fact, and it'is sufficient for us to say that after a painstaking examination of the evidence we fully concur in the conclusions of the trial court, and the decree is, therefore, affirmed.

Affirmed.