Petition for rehearing denied December 30, 1930 ON PETITION FOR REHEARING (294 P. 1049) In Banc.
Former opinion modified and petition for rehearing denied. In conformity with the statement in our former opinion that a supplemental opinion would be written in regard to matters that might be overlooked, or necessary corrections, we will take up the matter and endeavor to cover the questions contained in the motions for rehearing. Reference will be made to our former opinion. *Page 699
APPEAL OF CENTRAL OREGON IRRIGATION DISTRICT The decree of the circuit court fixing the irrigation season on the project of the Central Oregon Irrigation district, from April 1 to November 1 of each year and the period of maximum use, from May 23 to August 20, of each year, is affirmed, and the former opinion modified to conform herewith.
WATER FOR DOMESTIC USE The Central Oregon Irrigation district, by a petition for rehearing, urges that the restriction contained in the decree of the circuit court applying to that part of the opinion headed "Water for Domestic Use," which was affirmed by our former opinion, referring to the use of water for stock and domestic purposes on page 94 of the decree, as follows:
"It is further provided that diversions for these purposes by the above-named companies shall be under the supervision of the water master to the end that no two of them shall divert water for such purposes at the same time."
would inconvenience and perhaps prevent the use of water for such purposes in case of extreme necessity, and there being no objections made or known to the modification of such provision, the sentence which we have quoted from the circuit court's decree will be modified so as to eliminate therefrom the words "to the end that no two of them (referring to the companies and districts) shall divert water for such purposes at the same time," so the decree will provide for diversion of water during the nonirrigation season for stock and domestic purposes, as follows: It is further provided that diversions for these purposes (that is, *Page 700 for stock and domestic use) by the above-named companies shall be under the supervision of the water master.
The petition of claimant requests that the relative date of priority of October 31, 1900, allowed the North Canal Company for fifteen cubic feet per second of time for 591 acres of land should be subsequent in time and inferior in right and subject to the rights awarded to the Central Oregon Irrigation district of said date, as provided in the "Deitrich Decree" which was referred to in the decree of the lower court and in our former memorandum, and the terms of which have been followed in the decree of the circuit court and in our former opinion and is practically agreed to by all the parties interested.
On the petition of the Central Oregon Irrigation district and the stipulation between claimant and the state engineer, an addition will be made to the first paragraph of our former opinion, under the heading "Water for Domestic Use," so such paragraph will read as follows:
The testimony shows that, owing to the volcanic nature of the lands embraced within the Central Oregon Irrigation district, the people living in that district cannot depend upon wells for their domestic and stock water, but must secure such water through their irrigation ditches; and that during the nonirrigation season freezing weather makes it necessary that this water be delivered in a rather large head to conduct the same to the concrete cisterns on the several farms, and a head of 400 second feet of water is required for such purpose. That amount, namely, 400 second feet, is hereby awarded for storage in cisterns for domestic and stock water for the people of the district, to be *Page 701 diverted during the nonirrigation season; provided that the total amount diverted shall not exceed twenty-five thousand acre feet in any one year; provided, further, that in view of the fact that the Central Oregon Irrigation district and other irrigation projects require water for domestic use at the same time during the nonirrigation season, and in view of the weather conditions prevailing in the Deschutes basin during the winter months, it is necessary that all of the projects, requiring and having water adjudicated to them for domestic use, divert for domestic use at the same time. It is hereby ordered that the Central Oregon Irrigation district and other projects may divert for domestic use to the amount fixed in this decree simultaneously when necessary, in order to supply water for domestic needs. In other respects the provision of the decree of the circuit court for the allowance of water for domestic use and watering livestock, is affirmed.
CLAIM 15-Z OF THE NORTH CANAL COMPANY The opinion will be modified by changing the first paragraph, so as to read as follows:
The decree will be modified by changing the date so as to give the North Canal Company a date of relative priority of October 31, 1900, for fifteen cubic feet per second of time for 591 acres of land; provided the right shall be inferior to the rights of the Crook County Improvement District No. 1, as provided in the contract between the district and the North Canal Company; and, provided further, that such right of the North Canal Company shall be inferior and subject to the rights of the Central Oregon Irrigation district, in accordance with the provisions of the Deitrich Decree and the contracts of the parties interested or their predecessors in interest. *Page 702
MAINTENANCE FEES A change is requested to be made in our former opinion relating to maintenance fees. We simply referred to the general rule for the only purpose of showing that the contracts for maintenance fees were not embraced within the appeal. We were urged to pass on the contract with one L.D. Wiest and declined to do so, and we are compelled to still decline to pass upon this question. It is not involved in or germane to this appeal. The general rule referred to was not intended to and does not affect any other contract or claim.
Except as above provided, the petition of the Central Oregon Irrigation district for rehearing is denied.
APPEAL OF CLINE FALLS POWER COMPANY An application is made for the substitution of E.M. Peck in lieu of claimants E.E. Goucher and Cline Falls Power Company in this proceeding and that George H. Brewster be substituted as attorney of record in this proceeding for Jay H. Upton, Percy Cupper and A.C. Shaw in representing the interests listed and allotted to the Cline Falls Power Company and E.E. Goucher. The substitution of the party is asked on account of an alleged transfer of interests formerly belonging to the Cline Falls Power Company, which is said to have been made since the former opinion was written. Such substitution is unnecessary. Oregon Code 1930, § 1-311 (Or. L., § 38), provides, in substance, that no action shall abate by the transfer of any interest therein. This section is made applicable by Oregon Code 1930, § 6-107 (Or. L., § 395), to suits in equity, which are followed in the proceedings adjudicating water rights under the statute: Culver v. Randle,45 Or. 491 (78 P. 394); Meyers v. Hot Lake Sanatorium, *Page 703 82 Or. 587 (161 P. 697). All of the provisions of the decree herein will inure to the benefit of the grantee or transferee, the Cline Falls Power Company, if any.
As to the substitution of attorneys, should any question arise, Mr. Brewster, representing an interested party, will be recognized as attorney. Should there be any conflict or controversy between the attorneys who formerly represented Cline Falls Power Company and counsel who represent the present owner of the project, the court will give the matter due consideration. The application for substitution of E.M. Peck will be denied.
A petition for rehearing and brief in support thereof on behalf of Cline Falls Power Company asking that 180 second feet instead of 90 second feet be awarded the Cline Falls Power Company during the entire year for power purposes has been filed. After a consideration of the testimony relating to such claim, the petition for rehearing is denied.
APPEAL OF COLUMBIA-DESCHUTES POWER COMPANY Taking up the petition of this claimant for a rehearing, supported by an extended and forceful brief, we note that claimant restates its claim and asks to be protected in its right to the full amount of 8,000 cubic feet per second of time of the waters of Deschutes river. That amount was awarded to this claimant from the river for power purposes to be used on its lands or so much thereof as may be necessary and beneficial, with a date of relative priority of January 5, 1924. This power company having stipulated and waived its right in favor of all claimants and appropriators on the river above the proposed location of its power plant, we do not understand that the date of its priority *Page 704 is objected to. The claimants' rights should be protected. The only way under our statute that its rights can be protected is by giving it superiority over subsequent rights, initiated after the right of the power company. When the law-makers of the state adopted the water code and directed the procedure for adjudicating the waters of stream systems, they provided for the manner of adjudication as followed in this case and in several others. The method pointed out by the statute has been followed without question in regard to all the claimants in this proceeding. As we have heretofore indicated, a definite quantity of water can be adjudicated in favor of claimant only under the statute by following the method mapped out by the state law. We quote from the opinion of Mr. Justice BURNETT in the case ofCaviness v. La Grande Irrig. Co., 60 Or. 410, at page 421 (119 P. 731):
"In the very nature of things, a court cannot fix in advance by its decree what quantity of water will be reasonable in the future for the use of a riparian proprietor claiming the duty of water in that character."
Where the old riparian right system prevails, a riparian owner using water in that capacity is, in effect, always a tenant in common with other riparian owners on the same stream, and the amount to which such riparian owner is entitled varies with the reasonable demands of the other riparian proprietors. In other words, it is not a right to a definite amount of water while an appropriator is always a tenant in severalty and a decree can be rendered under the statute recognizing the right of an appropriator for a definite amount of water. This is forcefully illustrated by the brief on rehearing of learned counsel for this claimant, from which we quote: "in the original claim filed with the state engineer, the limit of quantity of which the *Page 705 claimant considers that it can make any beneficial use, and for which it is therefore willing to pay fees, is specified." And on the following page, referring to the claim made to the state engineer, when these proceedings were commenced, following the forms provided for appropriators which "require the amount claimed to be specified. In the next place a claim which did not specify its amount would be no claim at all." It might be further stated that a decree without specifying an amount would be no decree at all. Counsel in their brief suggests:
"Furthermore, the law requires (§ 5737) that at the time of taking testimony for the determination of rights to water, certain fees shall be paid, including, in case of claims to power, so much for each horsepower claimed,"
and asks:
"How is this to be computed, if no quantity is specified? Upon the final determination of the rights, it is provided by § 5744 that a certificate shall be issued, setting forth, among other things, the `priority of the date, extent, and purpose of the right.'"
And they ask:
"How is the extent to be specified if no quantity may be mentioned, defined or limited in any wise at any stage of the proceedings, without forfeiting the right?"
The only answer that we think of to this question is that the quantity of water to which the claimant is entitled under the date of relative priority and the purpose for which it is intended to be used, should be specified as it has been specified in our former memorandum, and no doubt will be, when the time arrives, specified in the certificate of the state engineer, pursuant to the decree of this court. Therefore, as heretofore *Page 706 mentioned, we concluded that the claim of this power company was, in substance, that of an appropriator. We still adhere to that opinion.
In passing upon this question there is not the remotest inclination to criticize counsel in any way, as the writer, when at circuit, attempted to do the very thing that counsel is now asking, namely, to award to a riparian proprietor a definite quantity of water. The case, upon reaching this court after the writer hereof was a member of this court, was promptly reversed. We refer to the case of Caviness v. La Grand Irrig. Co., supra.
The statute recognizes no difference as to the right of water to be used for irrigation from water to be used for power purposes, in so far as it relates to the protection of such rights. Both such uses should be and are protected under the statute. The rights of this claimant, which has stipulated liberally in regard to the rights of other appropriators, we think will be fully protected by a decree entered in accordance with our opinion.
Reference is made to the statement and proof of claim of the Columbia-Deschutes Power Company, which is in the nature of both a pleading and evidence. Under the statute these proceedings are conducted as nearly as may be in conformity to a suit in equity. In the case of Hough v. Porter, 51 Or. 318 (95 P. 732,98 P. 1083, 102 P. 728), it was said by Mr. Commissioner King, in effect, that the water suits are sui generis and an equitable rule should be adopted.
Counsel in their brief suggest that there is no occasion for an application to be made for a federal permit relating to the construction of the project of this claimant. Therefore the last paragraph of the *Page 707 opinion relating to the appeal of the Columbia-Deschutes Power Company, will be modified by striking out the provision relating to such application, so that the paragraph will read as follows:
The rights of this claimant are also subject to the payment of such license fees as may be due under the statute of Oregon. The further construction and completion of the power plant or plants of the Columbia-Deschutes Power Company may be commenced, prosecuted and consummated as authorized by the statutes of Oregon or granted by the state engineer of the state of Oregon pursuant to law.
DUTY OF WATER The duty of water for Deschutes river irrigation still remains for final determination, as indicated in our former opinion.
With the modifications above-mentioned, the petitions for rehearing are denied.
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