Petition for rehearing denied March 13, 1934 ON PETITION FOR REHEARING (30 P.2d 332) The respondents, Central Oregon Irrigation District and Cline Falls Finance Company, have filed a petition for rehearing and separate briefs in support thereof. Many matters are discussed, some of which require attention and consideration.
On account of the insufficient water in the Deschutes river to supply the various needs therefor, especially for irrigation, the decree of adjudication and the law should be strictly applied. We believe it to be largely a matter of administration of the decree and the statute. We think many of the questions now discussed in the briefs can be understood by the water master, with the assistance of the state engineer.
It is urged that there was an issue raised by the allegation in the complaint that there is machinery and equipment now installed and available for operation at Cline Falls to utilize 90 second feet for the generation of electrical power, 90 second feet for pumping and 14.17 second feet could be beneficially used for irrigation on the land for which the water was awarded, which allegation was denied by the answer.
It is a rather anomalous situation that a claimant should be disputing or minimizing its own water right. Therefore the matter may not have been given sufficient attention upon the former consideration. We must consider the rights at Cline Falls from two standpoints: First, what amount of water was used at Cline Falls and returned to the river, which the Odin Falls Land Company appropriated thereafter, at a point below Cline Falls? We refer to the briefs. The decree of adjudication and the statements in the briefs, we think, *Page 279 are sufficient. At page 40 of the Cline Falls brief on rehearing, it is stated: "The Cline Falls Ranch has received each and every year its full adjudicated amount of water." We also refer to the brief of the Central Oregon Irrigation District, at page 21, where prior to the purchase of the Cline Falls Ranch, "The ranch used the maximum decreed amount of water and the right was exhausted every year prior to May 23." The water used at Cline Falls and returned into the stream is the basis for the appropriation at Odin Falls. Second, the question naturally arises, to what quantity of water are the owners of the Cline Falls Ranch entitled during the time of the perfection of the inchoate right? After the rights of the Odin Falls Ranch are satisfied and the Cline Falls Ranch does not desire to use the amount of water to which it would be entitled or which it was awarded, the Cline Falls' right should be limited to the quantity which is beneficially used.
What we said in regard to the measurement of the land at Odin Falls applies with equal force to the Cline Falls Ranch.
The state engineer awarded the Cline Falls Company (and the award was adopted by this court) 90 second feet of water for 12 months each year for generating electrical power, and 90 second feet additional for six months during the irrigation season for power to operate the pumps, or a total of 180 second feet for pumping and electrical power, and 14.17 second feet for irrigation. It is claimed that at the present time the machinery and accoutrements available at Cline Falls are not sufficient to utilize all of the award of the Cline Falls. As we have remarked, this is largely a question of administration.
We are referred to the testimony in another case, Peckv. Ross, which we have no right to consider. *Page 280 Since the rendition of the former opinion, there has been filed a map of the Cline Falls land for the purpose of showing the cultivated land and the uncultivated land, with the suggestion that the case be referred to the circuit court for taking further testimony. This map and the data may be useful to the water master. Of course at present we cannot consider it.
It is stated in the brief that it is now found that a portion of the land claimed as irrigable on the Cline Falls Ranch lies in the stream bed itself and a portion is contained in the Deschutes canyon and the rocky precipitous cliffs and canyon walls thereof, and that a large portion of the 800 acres claimed as irrigable cannot be irrigated. If there is a question as to the amount of lands to be irrigated in any particular year at Cline Falls, the land in cultivation at Cline Falls and the amount of water necessary to pump the water to irrigate the same should be measured by the water master, or some competent person, and the amount of the water necessary to irrigate the same, limited by the duty of water and the irrigation season and in accordance with the decree of adjudication, allotted, so as to temporarily limit the amount of water awarded at Cline Falls to the amount necessary for the land cultivated and the amount necessary to pump the same, not exceeding the amount awarded by the decree, and those amounts should be allotted by the water master and no more. This provision, however, is subject to the established right at Odin Falls, and the quantity of water awarded to the Odin Falls Ranch should not be decreased until such right is satisfied. In other words, no water should be wasted, and the amount allotted by the water master each season should not exceed the amount necessary for a beneficial purpose. To illustrate, suppose that during the year of 1933 there were three hundred acres *Page 281 cultivated and irrigated at Cline Falls. During the year 1934 there may be cultivated only two hundred acres, which would decrease the amount of water necessary for the irrigation thereof, and in view of the fact that the quantity used by one having an inchoate right might change from year to year, it is not practical or necessary for a court to determine the amount to be used each year.
As to the waste of water at Odin Falls, to which we referred in our former opinion and which was estimated to be from 25 to 40 second feet wasted through the dam, we held in effect that the plaintiffs should be allowed a reasonable time to eliminate such waste, not exceeding one year. The ruling in our former opinion, as to the waste water at Odin Falls, will be modified so as to be as follows:
Section 47-311, Oregon Code 1930, reads thus:
"Said water master shall, as near as may be, divide, regulate and control the use of the water of all streams within his district by such closing or partially closing of the headgates as will prevent the waste of water, or its use in excess of the volume to which the owner of the right is lawfully entitled, and any person who may be injured by the action of any water master, shall have the right to appeal to the circuit court for an injunction. Such injunction shall only be issued in case it can be shown at the hearing that the water master has failed to carry into effect the order of the board of control or decrees of the court determining the existing rights to the use of water."
If there is an unreasonable waste at Odin Falls, as estimated, between 25 and 40 second feet, under this section of the statute we think it would be the duty of the water master to close or partially close the headgates or arrange the apparatus which may be in use, so as to prevent the unreasonable waste of water. *Page 282 Plaintiffs will be required to practically eliminate the waste of water at Odin Falls. This should be done under the direction of the state engineer and supervision of the water master and report thereof made to the circuit court for approval or disapproval, which the circuit court is hereby authorized to determine. In the event that plaintiffs fail to reasonably minimize the waste of water before the irrigation season opens, or such further time as may be allowed by the circuit court, the water master, as suggested, shall not allot the water to Odin Falls Ranch to be wasted.
It is contended by respondents that only 90 second feet of water can be used at Odin Falls for power in pumping. F.F. Wright testified that it required 130 second feet passing Cline Falls to operate the pump at Odin Falls. It is claimed on behalf of the respondents that this includes the 40 second feet of loss at Odin Falls through the dam. However, as it is necessary to have the dam repaired and the water necessary for pumping purposes at Odin Falls to be measured by an engineer, it is not essential that we determine the amount actually necessary for pumping purposes for the Odin Falls Ranch.
The water rights awarded the Cline Falls and the Odin Falls for irrigation purposes and for pumping the same are both inchoate rights. Such a right does not take effect until the water awarded is applied to a beneficial use, which is the basis, the measure and the limit to the use of all water in this state. An inchoate right provided for in an adjudication decree may be said to be an established right, although conditional and not perfected. In our former memorandum we referred to such a right as being "vested", in the sense that it was a right to do certain things which the parties had already begun to exercise. *Page 283
We find no reason for changing our former holding to the effect that the right of an appropriator of water, although subsequent in time to a prior appropriator, whose place of diversion and character of use is such that the waters are returned to the stream and made available to the subsequent appropriator below and applied to a beneficial use by him, so that the rights of such subsequent appropriator have attached, cannot be changed by the prior appropriator or his use extended to the injury of the lower subsequent appropriator: In re NorthPowder, 75 Or. 83, 92 (144 P. 485, 146 P. 475); Williams v.Altnow, 51 Or. 275 (95 P. 200, 97 P. 539).
It is contended in the argument that the contract between the Cline Falls Finance Company, the vendor, and the Central Oregon Irrigation District, the vendee, mentioned in our former opinion "has nothing to do with this case", and that the contract does not provide and does not contemplate that less water than the entire seasonal allowance shall be used on the ranch. We do not so read the contract. We refer again to a part thereof. The vendee agrees to pay the vendor the sum of $200 per day for each day that the vendor shall rotate the use of water appurtenant to said land, including the power right for pumping with the vendee during any irrigation season at the request of the vendee. The contract further provides: "The vendor further agrees that until said purchase price is fully paid it will, by its employees or by its lessee farm said ranch in such manner that it will require no water for the irrigation of said ranch or for pumping water to said ranch at any time during any current irrigation season, that the vendee's irrigation system is short of water or at any time that the vendee may request the vendor to cease using water on said premises." We think there *Page 284 was a plain proposition to change the place of use from the Cline Falls Ranch to the irrigation district, about 22 miles above, which respondents claim a right to do. This would be to the detriment and irreparable injury of the Odin Falls' right, which had attached before the contract was made.
In view of the fact that the Odin Falls Ranch is the lowest place on the river which is irrigated and, as far as irrigation is concerned, water passing Odin Falls without being used would be practically a waste, the Odin Falls Ranch and the Cline Falls Ranch should be irrigated at the same time in order to make the best use of the water.
The question of the provision for rotation is not involved in this case.
Having shown, as we think, that most of the questions discussed relate to the administration of the decree, necessitating the measurement of the land and water, it is unnecessary to remand the case to the circuit court for the taking of further testimony, as requested by the respondents.
The petition for rehearing is denied.
CAMPBELL and BAILEY, JJ., not sitting. *Page 285