*47[Filed December 8, 1890.]
On rehearing.
Strahan, C. J.— This case was heretofore before this court and a conclusion was reached reversing the decree of the court below, and enjoining the defendant from making the diversion of the water complained of. On the petition of the respondent a rehearing was ordered, and the case has been again fully argued at this term. There is one question that was overlooked, or at least the attention of the court was not sufficiently drawn to it, and that is the passive acquiescence of the plaintiff, or those under whom she claims, in the removal of the dam from the point on Mill creek where the La Grande "Water Company had established it in about the year 1865 to a point about 1,000 feet higher up said stream, and the expenditures made by plaintiff in consequence of such removal. These are some of the findings of the referee and of the court below on those subjects: “ (17) That the said defendant, since the said last diversion referred to, constructed a system of water-works in connection therewith in the said town of La Grande, Oregon, and have expended the sum of §8,000 in the construction of the same; (18) that the construction of said water-works was public, and plaintiff knew of the same, but that she never objected to the construction thereof; (19) that the diversion of the nine square inches of water from Mill creek by the defendant and its grantor, the La Grande Water Company, as hereinbefore stated, was for the period of twenty-two years, and was open, notorious, uninterrupted, practicable, continuous, by the acquiescence of the plaintiff and her grantors, and under a claim of right, from the month of July, 1865, to the time the defendant built the new dam, in 1887; (20) that the plaintiff purchased her land described in her complaint subject to the right of the La Grande Water Company and its successors to divert said water out of said Mill creek as aforesaid, and with notice of the same at the time of her purchase, and that she is estopped to deny the same or allege to the contrary.”
*48The court, in disposing of the referee’s report, among others, made the following finding: “No. 9. The court finds as follows: That in the month of July, 1865, after the organization of said company, the said Green Arnold gave to the said La Grande Water Company the right to enter and go upon the said lands hereinafter described, and to divert water from Mill creek for the purpose of supplying the town of La Grande with water for hire, or otherwise, and also gave it the exclusive right to erect and maintain all necessary works for the purpose of conducting said waters so diverted to the town of La Grande, Oregon, the same to be distributed as said company saw fit; that immediately thereafter the said La Grande Water Company, in pursuance of said grant, did enter upon said land of said Green Arnold aforesaid, at a point about sixty rods above the plaintiff’s premises, on said Mill creek, and diverted water therefrom by means of a square box about 12 feet long and 3x3 inches at one end and 5x6 inches at the other, and also constructed across said creek a dam five feet high, and put in a system of water.” “No. 19. The court finds as follows: That the diversion of five-sixths of the water of said Mill creek during the dry season of the year, and as much water as said box, used for diverting purposes, and hereinfore described, will carry during the remainder of the year, has been open, notorious, uninterrupted, peaceable, continuous and under claim of right by the defendant and its grantor, the La Grande Water Company, for a period of twenty-two years, and said use and enjoyment of said water and the rights and privileges thereto belonging had been acquiesced in by the plaintiff and her grantors ever since the month of July, A. £>. 1865, to the time defendant built his new dam in 1887.” . “No. 21. The court finds as follows: That the plaintiff has sustained no damage by reason of the removal of said dam or the diversion of said water.”
The defendant and its predecessor in interest have been in the actual use of this water for a long time, so far as appears, without objection from any one, and it assumed *49that such possession had ripened into an absolute title. Whether the plaintiff participated in that view at the time of the removal does not appear affirmatively, nor is it material. She knew of the removal. She also knew that the defendant was making extensive improvements and large expenditures in money which, without the use of the water, would be utterly worthless. She knew that the defendant, in making these improvements, relied upon its assumed right to divert the water at its new dam, and she must have known that the defendant would not have made these expenditures if it had known such right did not exist. Under these circumstances, we think, she could not be silent. She was bound to make known her claim to defendant before it had so far changed its position that the assertion of such claim would operate as a fraud upon it, and inflict great damage without any possibility of compensation. We have the less hesitancy in announcing this conclusion for the reason that the plaintiff’s situation is no worse than it was before the dam was moved up the creek. The same quantity of water will pass the upper dam that did the lower, and whatever advantages accrued to the plaintiff prior to such change will still be hers. Upon the second argument counsel for the appellant have cited Ang. Water Courses, § 29; Washb. Easem,. p. 661; Gould, Waters, § 237; Kidd v. Laird, 15 Cal. 179, 76 Am. Dec. 472; Junkans v. Bergin, 67 Cal. 267; Davis v. Gale, 32 Cal. 34, 91 Am. Dec. 554; Fuller v. Mining Co. 12 Colo. 12; Belknap v. Trimble, 3 Paige, 605; Whittier v. Cocheco Co. 9 N. H. 454, 32 Am. Dec. 382, as tending to sustain his contention on the other question discussed, that is, the right claimed by the appellant to change the place of diversion of the water without forfeiting its right to the water. But it is not thought that these authorities reach the facts of this particular case. We do not deem it of importance to enter upon the re-examination of that question. The former opinion will therefore be so far modified that the defendant, its successors and assigns, may take from said Mill creek at its present dam and point of diversion, the same quantity of *50water, and no more, that it and its predecessor in interest had been accustomed to take at the lower dam. The defendant will' also be required to have or permit no waste gate at its reservoir, so that the surplus water shall flow back into Mill creek at its dam, or, if that be impracticable by reason of the extent of the fall between the dam and the reservoir, then the defendant shall cause such surplus water entering its reservoir to flow back into Mill creek at the highest point up said stream above the plaintiff’s premises, where the same is reasonably practicable, and for that purpose it may establish a waste-gate at said reservoir; and for the purpose of giving effect to this decree, the court below is authorized to issue such writs of injunction, mandatory or otherwise, as may be necessary. The parties may also, from time to time, apply to the court below for such modification of this decree in relation to the manner of the use of said water by the defendant as the justice of the case may require.
In view of all the circumstances of this case, we have thought proper to award costs to the plaintiff