Tudor v. Jaca , 178 Or. 126 ( 1946 )

Petition for rehearing denied February 5, 1946 ON PETITION FOR REHEARING (165 P.2d 770) In a petition for a rehearing of this case, appellant has directed our attention to certain portions of our opinion wherein, she contends, error was committed.

It is insisted that the water right certificate which was issued to appellant's predecessor, Pacific Livestock Company, pursuant to the circuit court's decree in the Owyhee adjudication, is, by force of the statute (section 116-436, O.C.L.A.) "conclusive evidence of the priority and extent of the appropriation therein described in any suit, action or other proceeding * * *", except where the appropriation has been abandoned. The Owyhee decree, as stated in our opinion, gave Pacific Livestock Company a right to the use of the waters of Crooked Creek and Crooked Creek springs for the irrigation of 244.5 acres of land, with a priority date of 1885, but adopted a stipulation between the Livestock Company and respondent's predecessor, James P. Anderson, the effect of which was to limit the Livestock Company's 1885 priority to 119.9 acres. Appellant contends that the court, in its construction of the Owyhee decree, has destroyed "the sanctity of the water right certificate", and asserts that the certificate, whether correct or erroneous, has become final and is binding upon the whole world.

There can be no doubt but that a water right certificate must be accorded the evidentiary effect which the statute prescribes. The certificate in this case, however, is based specifically upon the decree in the Owyhee adjudication, and, in respect of the water right certified, contains the following proviso: "And said right shall be subject to all other conditions and limitations contained in said decree." In considering the effect of the certificate as evidence, therefore, the conditions and limitations contained in the decree must be regarded as embodied therein, and the certificate is subject to any modification that may result from a judicial interpretation of any ambiguity in such conditions or limitations. Appellant's criticism of the court's opinion in this respect cannot be sustained.

Appellant argues that the decree in Seaweard v. PacificLivestock Company provided that the Livestock Company "could use 100 inches of water as it saw fit on any of its lands". The decree recited that the Company owned the E 1/2 E 1/2 and the SW 1/4 NE 1/4 of section 22, and the S 1/2 and the SE 1/4 NW 1/4 of section 14, T. 33 S., R. 39 E., W.M. As appurtenant to such lands, it awarded the Company the use of "the first one hundred inches * * * miners measurement * * * of the waters of Crooked Creek, for domestic use and for the irrigation of said premises, which amount of water * * * in lieu of being used upon said lands under the ditches constructed prior to 1903, may be applied in the irrigation of any of the lands above described * * *". The decree, therefore, made the Livestock Company's prior right to the use of 100 inches of water appurtenant to certain lands, but permitted a change in place of use. No change was made. The land to which the water was appurtenant continued to be irrigated, under a claimed date of priority as of 1885, and appellant now asserts the right to spread the 100 miner's inches of water not only over the lands to which it was originally appurtenant, but over additional lands, claiming an 1885 priority for all lands so irrigated. The law will not permit this. If, as appellant now contends, 100 miner's inches is a sufficient quantity of water to irrigate 300 acres of land, then the surplus over the amount reasonably necessary to irrigate the land for which it was originally appropriated (119.9 acres) was not within the original appropriation. A prior appropriator cannot claim or use more water than is reasonably necessary for the purposes of his appropriation. Simmons v. Winters, 21 Or. 35, 27 P. 7, 28 Am. St. Rep. 727; Hindman v. Rizor, 21 Or. 112, 27 P. 13; Cole v.Logan, 24 Or. 304, 33 P. 568; Porter v. Pettengill, 57 Or. 247, 110 P. 393; Clough v. Wing, 2 Ariz. 371, 17 P. 453;Gunnison Irrigation Co. v. Gunnison Highland Canal Co., 52 Utah 347, 174 P. 852; Johnston v. Little Horse Creek Irr. Co.,13 Wyo. 208, 79 P. 22, 70 L.R.A. 341, 110 Am. St. Rep. 986. Subsequent appropriators are entitled to insist that prior appropriations shall not be enlarged beyond the scope of original appropriation, if the proposed enlargement interferes with their rights. Mattis v. Hosmer, 37 Or. 523, 62 P. 17; In re NorthPowder River, 75 Or. 83, 144 P. 485, 146 P. 475; Baer Bros.Land Cattle Co. v. Wilson, 38 Colo. 101, 88 P. 265; Faden v.Hubbell, 93 Colo. 358, 28 P.2d 247; Jensen v. Birch CreekRanch Co., 76 Utah 356, 289 P. 1097. If a prior appropriator desires to enlarge his appropriation, he must make a new appropriation, but such new appropriation will be inferior to all rights which have intervened since the prior appropriation was made. Andrews v. Donnelly, 59 Or. 138, 116 P. 569; In reWaters of Umatilla River, 88 Or. 376, 168 P. 922, 172 P. 97; Inre Water Rights of Hood River, 114 Or. 112, 227 P. 1065; In reWaters of Deschutes River, 134 Or. 623, 286 P. 563, 294 P. 1049.

Appellant inquires whether or not, if the court's interpretation of the Owyhee decree is permitted to stand, the water right certificate will be recalled and a new one issued. There appears to be no statutory authority for the cancellation of outstanding certificates and the issuance of new ones under the circumstances of the present case. However, in regulating the diversion and use of the waters of the stream, the water master, under the direction of the state engineer, will be governed by the provisions of the court's decree herein. Section 116-302, O.C.L.A.; Norwood v. Eastern Oregon Land Co., 139 Or. 25, 29,5 P.2d 1057, 7 P.2d 996.

The stipulation in the Owyhee adjudication contained the following paragraph, of which no mention was made in our opinion:

"It is further agreed that as to the waters rising on the lands of said Anderson in Section 15, Township 33 South, Range 39 E.W.M., that said water shall be used by both parties in the future as same have been in the past, and that neither party shall make nor attempt to make any use of said waters that will take the said waters away from the premises of the other party as the same are now used."

This paragraph, with the rest of the stipulation, was embodied in the Owyhee decree. Appellant complains because our opinion failed to give it effect. We think that it would have been improper for us to have attempted to do so. The language of the paragraph is too vague and indefinite to be the basis of any decree. Even if it had been sufficiently definite, the agreement was a mere personal covenant between former owners of the respective premises involved herein, and did not run with the land. Houstonv. Zahm, 44 Or. 610, 622, 76 P. 641, 65 L.R.A. 799. Moreover, if it had run with the land, appellant being now the owner of the land in section 15 formerly owned by Anderson, respondent's predecessor, it would appear that whatever rights might have been predicated upon the agreement have become extinguished by merger. 14 Am. Jur., Covenants, Conditions and Restrictions, sections 5, 293.

Our attention is called to the fact that Anderson, respondent's predecessor, and not Pacific Livestock Company, owned the lands in section 15, above referred to, at the time of the Owyhee adjudication. These lands were not involved inSeaweard v. Pacific Livestock Company, and hence were not affected by the decree therein or by the stipulation in the Owyhee adjudication. The Owyhee decree gave them an 1885 date of relative priority, and on that point is res judicata. Through oversight, we tabulated them under a 1904 date. Our opinion, therefore, will be modified by tabulating the lands in section 15, T. 33 S., R. 39 E., W.M., under the 1885 date of priority.

Other points raised by appellant have had our consideration, but we deem it unnecessary to discuss them. The petition for rehearing is denied.