On May 31, 1924, W.R. Campbell et al. commenced a suit against Luke E. Walker et al. in the circuit court for Klamath county, asking that an injunction issue against defendants restraining them from interfering with plaintiffs in the irrigation of their lands with water from the south fork of Sprague river, and calling for an adjudication of their rights. The court thereupon made an order referring the matter to the state engineer for adjudication. The engineer proceeded to determine and adjust the water rights of the respective parties, as well as of the other water users on Sprague river; heard the testimony offered; made a complete survey of the grounds; and prepared his report. He then notified all parties concerned of the times and places where said report would be open for public inspection.
Thereafter appellants herein filed certain exceptions to, and instituted contests of, certain findings in said report. These contests and exceptions were then heard by the circuit court, who after a consideration of the testimony and the law, entered a decree confirming the adjudication of the state engineer, with a few minor modifications. Before entering the decree of confirmation, the court made an order consolidating the matter of the adjudication by the state engineer with the suit instituted by plaintiff. From a portion of the decree confirming the adjudication, defendants take this appeal. *Page 377
The only part of the decree before this court on this appeal is as to the dating given to certain lands belonging to respondents.
The assignments of error are as follows:
That the trial court erred in the decision of all said contests, in determining that the pasturing of cattle on, and the cutting of hay from, land that is overflowed in spring freshets, the water rising from the river and covering the land higher than itself, then receding in summer from evaporation and natural drainage, constitutes an appropriation of water sufficient to irrigate said land after drainage during the entire irrigating season.
That the court erred in deciding that a squatter on state land, without application to purchase made, has such an interest in the land that he could initiate appropriation of water for said land, and especially by merely grazing his cattle or cutting hay thereon.
That the court erred in holding that such a squatter, by selling his improvements without having made application to purchase from the state, transferred such a water right, so initiated, to one who later applied to the state for purchase of the land.
That the court erred in determining in its decree that the depasturing of cattle or cutting hay on such a swamp determines the priority of the right to the the use of the water, rather than the date of drainage of such swamp and application of water in irrigation thereafter.
That the court erred in decreeing that respondents Campbell and Connor have prior dating in their rights to use water from the south fork of Sprague river than the appellant on land that was formerly naturally irrigated by Fritz creek and Deming creek, *Page 378 which water of said creek was not diverted away from said land until long after the appropriation of water of said south fork by appellants, as decreed by the court, and was so diverted away from the land of said Connor and Campbell by themselves and their predecessors in interest.
[1.] Respondents moved to dismiss the appeal on the ground that appellants had failed to serve the notice of appeal on other water users on the stream, parties to this adjudication, who were adverse to the appellants. This motion was heretofore tentatively overruled with permission to renew it at the hearing on the merits.
Appellants are owners of land situate further upstream than the lands owned by respondents which are irrigated from the water of the south fork of Sprague river. The circuit court gave them priority datings to their land in Sec. 6, T. 37 S., R. 15 E. of W.M. as of March 25, 1883, and to their lands in Sec. 36, T. 36 S., R. 14 E. of W.M. priority datings as of February 25, 1884. To these datings they took no exception, but did take exceptions to the datings given to the priority datings of the water rights of respondents' lands which had earlier datings than appellants' lands, and from that part of the decree, only, they appeal. That is, by their exception they claim that the dating given to respondents' lands should be subsequent to March 25, 1883, that being the date given to appellants. Any subsequent dating given to respondents' lands would not adversely affect any of the other users of the water. Therefore, none of the other users need be made a party to this appeal as they are not adverse parties.
The motion to dismiss is overruled. *Page 379