Henrici v. Paulson , 134 Or. 222 ( 1930 )

This is an action brought by plaintiffs to appropriate a right of way for a pipe line across the lands of defendants to convey water from a spring on the lands of the defendants to the premises owned and occupied by plaintiffs. The trial court entered a judgment of appropriation from which defendants appealed.

The evidence in the case is in the form of stipulated facts, which are substantially as follows: Defendants claim to own the spring and the exclusive right to the use of the waters thereof and never have consented to the use or appropriation of such waters by the plaintiffs. The claim of plaintiffs to the right to appropriate the waters of the spring is based wholly upon an application to the state engineer for a permit to appropriate the water of the spring made March 17, 1925, and the permit issued July 1, 1926, copies of which are in the record.

The right of the parties to the waters of this spring and pipe leading therefrom has been before this court in the cases ofPaulson v. Henrici, 128 Or. 414 (274 P. 313); Henrici v.Paulson, 128 Or. 514 (274 P. 314). It has been adjudicated that the defendants Paulsons were the owners in fee simple of the real property upon which the spring and water are located, and under the provisions of Or. L., § 5797, which provides as follows:

"All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, or seepage waters of the state, shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the waters of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the right to the use of such waters."

Defendants likewise own the spring. In the circuit court for Clackamas county in the case which has been affirmed by this court, it was decreed, inter alia, as follows:

"and the spring situate thereon, and the waters thereof, and that the plaintiffs [the Henricis] and either thereof, have no right, title or interest, license or easement, in or to said real property, spring or waters thereof, or to the use and enjoyment thereof, or any part of the same. * * *

"and either thereof, have no right, title, interest, license, easement or right of way in, upon or across said premises [the lands of the Paulsons] or any part thereof, to keep, operate, or maintain a pipe line, or for any other purpose whatsoever." It is contended on behalf of the plaintiffs that their right to appropriate the water of this spring by filing on the same in the office of the state engineer has not been adjudicated.

The spring and waters thereof, involved herein, are the exclusive property of defendants. The water of the spring is not subject to appropriation by the plaintiffs; therefore, there is no necessity for the right of way sought to be condemned: Boycev. Cupper, 37 Or. 256 (61 P. 642); Morrison v. Officer, 48 Or. 569 (87 P. 896); Hayes v. Adams, 109 Or. 51 (218 P. 933);Willow Creek Irr. Co. v. Michaelson, 21 Utah 248 (60 P. 943, 51 L.R.A. 280, 81 Am. St. Rep. 687); Deseret Livestock Co. v.Hooppiania, 66 Utah 25 (239 P. 479).

The statute of this state, providing for appropriation for beneficial use of the waters of the state, provides for such appropriation of public waters and not of private waters: Or. L., §§ 5715, 5716. The existing rights or vested rights are carefully preserved by the provisions of the statute. The plain language of section 5797 settles the question in this case in favor of plaintiffs. In the enactment of the water code the legislature did not intend or attempt to authorize the appropriation of private property in water to which a right is recognized in the owner of land upon which spring waters first arise by virtue of Or. L. § 5797. The power to so appropriate private property does not reside in the law-making body of the state. After the water from a spring passes therefrom or is mingled with the water of a running stream, a different rule applies. We are not here interested in the rights of an appropriator of the waters of a spring on public land, as against a subsequent donee or grantee of the government or the right to appropriate waters, having their source in a spring on private property but which flow between well-defined banks, so as to constitute an actual stream or watercourse. The record in the present case shows that the spring in question has no overflow, but has a little seepage. There is no showing that there is a natural stream flowing from this spring. In Boyce v. Cupper, supra, it was said:

"The rule is general that water percolating the soil beneath the surface, the course of which is unknown, and unascertainable, belongs to the realty on which it is found."

Several Oregon cases are there cited and also a number of cases from other jurisdictions.

Morrison v. Officer, supra, was decided after the enactment of Or. L. § 5797. It involved the right to the water of a spring arising upon the land of the defendant. The water of the spring was not sufficient to form a surface stream. It was held that the defendant was the exclusive owner of the waters of the spring and could make such use of it as he chose, and the plaintiff had no right and could acquire no right therein without the consent of defendant. The facts were similar to those in the case at bar. The syllabus is as follows:

"Section 5019, B. C. Comp. [now Or. L. § 5797] conferring on the owner of land on which spring or seepage water issues the right to use such water, was intended to give such water to such owner, and he may prevent it from passing off his own land."

In Hayes v. Adams, supra, referring to certain contentions of one of the parties with regard to subterranean percolating waters, the source of which was unknown and unascertainable, said:

"They invoke the rule recognized by all the authorities, that such waters are a constituent part of the land, and belong to the owner of the land, with the right in such owner to make any reasonable use thereof, including a use which, either by reason of its character or the manner of its exercise, cuts off or diverts the flow of percolating waters from his neighbor's spring and renders the same dry and useless." Citing numerous authorities.

Neither the pleadings nor proof of plaintiffs show any lawful authority to appropriate the right of way over the land of the defendants or any necessity for the appropriation: Chap. 166, Laws 1927; 20 C.J. 949, § 361; Smith v. Cameron, 106 Or. 1 (210 P. 716, 27 A.L.R. 510); Smith v. Cameron, 123 Or. 501 (262 P. 946).

The plaintiffs rely upon the opinion in the case of Brosnan v.Harris, 39 Or. 148 (65 P. 867, 54 L.R.A. 628, 87 Am. St. Rep. 649). That was a suit to restrain the diversion and interference with the water of a certain spring located upon unoccupied public land of the United States, as plainly shown by the language of the learned justice who wrote the opinion, and does not relate to a spring upon land in which the title in fee simple is in private ownership as in the case at bar.

It follows that the judgment of the circuit court must be reversed and the action dismissed. It is so ordered.

COSHOW, C.J., BROWN and BELT, JJ., concur.