Mr. Chief Justice Moore
delivered the opinion.
This is a special proceeding for the punishment of an alleged contempt. The affidavit of the relator, A. W. Turner, is to the effect that, having instituted a suit in the Circuit Court of the State of Oregon for Malheur County against J. L. Cole, B. F. Kendall, and G. J. Gray, it was decreed on December 6, 1898, in pursuance of the mandate of this court (Turner v. Cole, [262] 31 Or. 154, 49 Pac. 971), that he was the prior appropriator of the water of Willow Creek, and entitled, from April 1st to July 15th of each year, to 100 inches, and for the remainder of the time to 50 inches, thereof, to be measured at the head of what is known as the ‘ ‘ Imbler or Fence Ditch, ’ ’ and said defendants were enjoined from diverting the water of that stream in any manner so as to interfere with the quantity thereof awarded to him; that, notwithstanding said decree was still in force, Gray had, since July 15, 1901, knowingly and intentionally diverted the water of Willow Creek, and prevented the quantity thereof allowed him from flowing to the head of said ditch; and that, having frequently demanded of him the removal of the obstruction to the flow of the water to which he is entitled, and to permit the required quantity thereof to reach the head of said ditch, he had refused to comply therewith. Based upon this affidavit, and the motion of the district attorney therefor, an order was issued by the court requiring the defendant to appear before it at a time designated, and show cause, if any he had, why he should not be punished for contempt, which order having been personally served upon him, he appeared as required; and the court, after investigating the charge, found him guilty of the contempt as alleged, and, having fined him $50 and the costs and disbursements of the proceeding, he appeals from the judgment thus rendered.
It is contended by defendant’s counsel that there was no evidence introduced at the hearing tending to show any violation of the terms of the decree, and hence the court erred in overruling their motion for a judgment of nonsuit. All the testimony taken is attached to, and made a part of, the bill of exceptions, a consideration of which shows that the defendant placed a dam in Willow Creek, and diverted the water thereof in such a maimer as to prevent its flowing in a certain ditch extending from said creek through his land and that of the relator; and the principal inquiry is whether such diversion prevented the flow of water to the head of the ditch mentioned in the decree. At the hearing the relator introduced in evi[263] deuce a map upon which Willow Creek is represented as flowing through Gray’s land, where it is tapped by a ditch constructed on the easterly side of the creek. This stream also flows through the relator’s land, joining Gray’s on the east, where it is intersected by another ditch, constructed on the westerly side thereof. In Turner v. Cole, 31 Or. 154 (49 Pac. 971), Mr. Justice Wolverton, in speaking of the relator and these ditches, says: “The plaintiff claims to have acquired his right by appropriation and use of the waters of Willow Creek, diverted therefrom by means of two ditches, which tap the creek, one upon each side, in the southeast quarter of section 10, township 16 south, range 13 east, in Malheur County. Willow Creek runs in a southeasterly course, and these ditches are so constructed that they encompass, upon the north, east, and west, the principal portion of plaintiff’s lands.” Further in the opinion, in referring to these artificial conduits, it is said: “The ditches have been utilized as a means of constructing a fence, for drainage, and for irrigation, but there is much conflict in the testimony touching the real purpose for which they were originally constructed.” This excerpt from the opinion is taken to determine, if possible, the location of the Irnbler or fence ditch. It will be observed from the language quoted that these ditches were used as a means of turning stock. The statement thus made is supported by the testimony of N. Darnell, who, as a witness at the trial of the suit in which the opinion was rendered, said that there was a fence ditch on each side of the creek. The testimony taken at this examination also shows that each of said trenches mentioned in the opinion was known as a “fence ditch.” The word “fence,” when used as a synonym for “Irnbler,” and as qualifying the word “ditch,” adds no particular signification to the term, and for this reason may properly be rejected. Gray owns the S. W. % of the N. W. %, the N. % of the S. W. ]4> and the S. W. % of the S. W. % of section 10 in township 16 south, range 43 east, of the Willamette Meridian; and Turner owns the S. E. 14 of that section. It appears from the map introduced in evidence, and from the testimony given at the hear-[264] rug, that the ditch constructed on the easterly side of Willow Creek taps that stream in the S. W. 44 °£ the N. W. 44 of seetion 10, and that the ditch dug on the opposite side takes the water from the creek in the S. W. 44 of the S. E. 44 of said section, about a mile below the head of the upper ditch. It will be remembered that the- opinion quoted from states that both ditches tap the creek in the S. E. 44 of section 10.
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Mr. Chief Justice Moore
delivered the opinion.
This is a special proceeding for the punishment of an alleged contempt. The affidavit of the relator, A. W. Turner, is to the effect that, having instituted a suit in the Circuit Court of the State of Oregon for Malheur County against J. L. Cole, B. F. Kendall, and G. J. Gray, it was decreed on December 6, 1898, in pursuance of the mandate of this court (Turner v. Cole, [262] 31 Or. 154, 49 Pac. 971), that he was the prior appropriator of the water of Willow Creek, and entitled, from April 1st to July 15th of each year, to 100 inches, and for the remainder of the time to 50 inches, thereof, to be measured at the head of what is known as the ‘ ‘ Imbler or Fence Ditch, ’ ’ and said defendants were enjoined from diverting the water of that stream in any manner so as to interfere with the quantity thereof awarded to him; that, notwithstanding said decree was still in force, Gray had, since July 15, 1901, knowingly and intentionally diverted the water of Willow Creek, and prevented the quantity thereof allowed him from flowing to the head of said ditch; and that, having frequently demanded of him the removal of the obstruction to the flow of the water to which he is entitled, and to permit the required quantity thereof to reach the head of said ditch, he had refused to comply therewith. Based upon this affidavit, and the motion of the district attorney therefor, an order was issued by the court requiring the defendant to appear before it at a time designated, and show cause, if any he had, why he should not be punished for contempt, which order having been personally served upon him, he appeared as required; and the court, after investigating the charge, found him guilty of the contempt as alleged, and, having fined him $50 and the costs and disbursements of the proceeding, he appeals from the judgment thus rendered.
It is contended by defendant’s counsel that there was no evidence introduced at the hearing tending to show any violation of the terms of the decree, and hence the court erred in overruling their motion for a judgment of nonsuit. All the testimony taken is attached to, and made a part of, the bill of exceptions, a consideration of which shows that the defendant placed a dam in Willow Creek, and diverted the water thereof in such a maimer as to prevent its flowing in a certain ditch extending from said creek through his land and that of the relator; and the principal inquiry is whether such diversion prevented the flow of water to the head of the ditch mentioned in the decree. At the hearing the relator introduced in evi[263] deuce a map upon which Willow Creek is represented as flowing through Gray’s land, where it is tapped by a ditch constructed on the easterly side of the creek. This stream also flows through the relator’s land, joining Gray’s on the east, where it is intersected by another ditch, constructed on the westerly side thereof. In Turner v. Cole, 31 Or. 154 (49 Pac. 971), Mr. Justice Wolverton, in speaking of the relator and these ditches, says: “The plaintiff claims to have acquired his right by appropriation and use of the waters of Willow Creek, diverted therefrom by means of two ditches, which tap the creek, one upon each side, in the southeast quarter of section 10, township 16 south, range 13 east, in Malheur County. Willow Creek runs in a southeasterly course, and these ditches are so constructed that they encompass, upon the north, east, and west, the principal portion of plaintiff’s lands.” Further in the opinion, in referring to these artificial conduits, it is said: “The ditches have been utilized as a means of constructing a fence, for drainage, and for irrigation, but there is much conflict in the testimony touching the real purpose for which they were originally constructed.” This excerpt from the opinion is taken to determine, if possible, the location of the Irnbler or fence ditch. It will be observed from the language quoted that these ditches were used as a means of turning stock. The statement thus made is supported by the testimony of N. Darnell, who, as a witness at the trial of the suit in which the opinion was rendered, said that there was a fence ditch on each side of the creek. The testimony taken at this examination also shows that each of said trenches mentioned in the opinion was known as a “fence ditch.” The word “fence,” when used as a synonym for “Irnbler,” and as qualifying the word “ditch,” adds no particular signification to the term, and for this reason may properly be rejected. Gray owns the S. W. % of the N. W. %, the N. % of the S. W. ]4> and the S. W. % of the S. W. % of section 10 in township 16 south, range 43 east, of the Willamette Meridian; and Turner owns the S. E. 14 of that section. It appears from the map introduced in evidence, and from the testimony given at the hear-[264] rug, that the ditch constructed on the easterly side of Willow Creek taps that stream in the S. W. 44 °£ the N. W. 44 of seetion 10, and that the ditch dug on the opposite side takes the water from the creek in the S. W. 44 of the S. E. 44 of said section, about a mile below the head of the upper ditch. It will be remembered that the- opinion quoted from states that both ditches tap the creek in the S. E. 44 of section 10.
The transcript of that case does not now contain any map of the premises, and it may have been, as is sometimes the case, in the absence of a plat of the locus in quo-, that counsel at the trial sketched a general outline of the stream, ditches, and land, or it is possible that such statement was based upon the testimony of witnesses whose attention was not particularly called to the matter; but, however this may be, we think the opinion incorrectly located the head of the upper ditch, which taps the stream in the N. W. 44 °f section 10, and on Gray’s land, at the point indicated on the map. If the lower means of diverting the water be known as the ‘ ‘ Imbler Ditch, ’ ’ the defendant, as we understand, may, from his obstruction of the stream above the head of the upper ditch, divert the water on the southerly side of the creek, use it in irrigating his premises, and return the required quantity at the head of the lower ditch; thereby depriving Turner of the use of the water to irrigate his land, which lies on the easterly side of the stream. If, however, the lower ditch be the one specified, no disobedience of the decree has occurred; but, if the upper conduit be known as the “Imbler ditch,” it follows that the defendant is guilty as charged. It is impossible to reconcile the conflict in the testimony in respect to the identity of the ditch mentioned in the decree; the defendant and several of his witnesses stating that they had never heard the upper ditch called by that name until after the decree was rendered, and that the ditch specified in the decree taps Willow Creek on Turner’s land. J. L. Cole, appearing as defendant’s witness, testified that the lower ditch was constructed by a Mr. Price as a means of turning stock, and called the “Price or Fence Ditch,” but, the premises across which it was dug having been sold to Imbler, [265] tbe ditch was thereafter generally known by the name of the latter. Turner, however, testified that the ditch on the east side of the creek, which tapped the stream on Gray’s land, was known as the “Imbler Ditch,” and that the lower ditch was dug by Price, Kimball, and himself, but had not been used for. ten or twelve years. Frank Start testified that for seventeen years he had known the upper ditch, which was constructed by one Crocker, and now known as the “Imbler Ditch.” We have examined the testimony given at the trial of the suit in which the decree alleged to have been violated was rendered, and find that Turner, the relator herein, as a witness in his own behalf, testified that nearly all his land was irrigated by water from the Imbler Ditch. At that time no controversy existed in relation to the ditches, the question at issue in the suit being the prior right of appropriation; and from Turner’s testimony, given at that trial, the name of the ditch, as stated by him, may have been incorporated in the decree as a means of identifying the particular one, at the head of which the water awarded him was to be measured.
1. At the common law a superior court of record was the sole judge of contempts committed against its authority and dignity, and its judgments inflicting punishment upon contemners were not reviewable by writ of error: Rapalje, Contempt, § 141. In this state, however, the statute confers upon either party the right of appeal from a judgment of contempt, to be taken in like manner and with like effect as from a judgment in an action: B. & C. Comp. § 676. If it be assumed that upon a motion for a judgment of nonsuit the testimony given at the trial is to be considered in this court, as in the court below, we are satisfied that the preponderance is on the side of relator’s contention that the Imbler Ditch taps Willow Creek on the defendant’s land, and that he obstructed the flow of the water therein in such a manner as to prevent its reaching the head of said ditch.
Other errors are assigned, but, deeming them unimportant, the judgment is affirmed. Affirmed.
Decided 30 March, 1903.