Vandehey v. Wheeler

ON PETITION FOR REHEARING

Thomas J. Moore, Hillsboro, argued the cause for appellants. With him on the briefs were Brink & Moore, Hillsboro. John W. Osh urn, Solicitor General, Salem, argued the cause for respondents. With him on the brief was Lee Johnson, Attorney General, Salem. Before Schwab, Chief Judge, and Langtry, Foley, Fort and Thornton, Judges. FOLEY, J.

This is a declaratory judgment proceeding in which plaintiffs are three Washington county farmers who hold permit water rights with a priority of 1949 to the waters of West Dairy Creek. They seek to enjoin the defendants State Engineer and Watermaster from enforcing what they claim to be defendants’ requirement that plaintiffs repair and maintain plaintiffs’ diversion works at “Dam A,” hereinafter described. They also seek to enjoin defendants from denying them the right to appropriate water under their water rights pending such repair.

The principal issue centers around what is plaintiffs’ point of diversion. A general diagram showing the dams and direction of flow of watercourses will be helpful.

Plaintiffs claim that the original point of diversion set by. them in their application for water rights and subsequent permit has been changed by reason of the claimed fact that the natural flow of West Dairy Creek has been altered by time and circumstances so that the natural flow of West Dairy Creek is now the unnamed channel which proceeds through the plaintiffs’ property and that actually plaintiffs’ point of diversion is now where they pump the water out of the reservoir behind “Dam B.”

Defendants contend that. “Dam A”' was constructed *40as part of a plan to divert water from West Dairy Creek for the benefit of the plaintiffs and what plaintiffs call their “natural watercourse” is, in fact, an improved diversion ditch. Defendants contend what they have required the plaintiffs to do is to install and maintain a sufficient headgate and measuring device to regulate and measure the water appropriated from West Dairy Creek at the point denominated by plaintiffs as their point of diversion in their permit for direct flow diversion of the waters of West Dairy Creek. The trial court made findings of fact and concluded that the defendants State Engineer and Water-master’s contentions were correct and found that the plaintiffs were not entitled to any relief in this proceeding. We affirm.

A brief review of law concerning the appropriation of water in Oregon will assist in understanding this controversy. In 1909 the legislature of the state of Oregon adopted a water code (now ORS ch 537) in which it was declared that all waters within the state from all sources of water supply belong to the public and that, subject to existing rights, all waters within the state might be appropriated for beneficial use and not otherwise. The water code then provided how the waters so appropriated to beneficial use should be established as water rights by providing procedures therefor and making the office of the State Engineer the index of the rights and their priorities and giving the State Engineer the authority, subject to established priorities, to cause the diversions or deliveries to be regulated so that the water would be delivered fairly to those entitled. There was thus a central index in the state where one could go to determine from records the precise water right on a given tract of land including the type of use, such as for direct flow *42irrigation, storage, domestic, municipal, industrial, etc., and precisely the quantity and where and how the water was to be diverted.

*41

*42The water code also provided- that a water user desiring to do so could apply to the State Engineer for a change in the type or character of use or change in point of diversion or place of use by an application to be processed through administrative procedures in his office (now ORS 540.520). The term “point of diversion” thus became a term of art, having the technical meaning under the water code of the place designated by a permittee in hi-s application for water rights and ultimately in the water certificate itself.

Prior to 1949 plaintiffs had no right to appropriate water from West Dairy Creek. In that year they decided to exercise their right to appropriate water, pursuant to the water code, and each applied for and received a permit to appropriate water directly from West Dairy Creek. These appropriation permits are later in time and inferior in right to those of other appropriators of water from West Dairy Creek who are not parties to this proceeding, some of whose diversions are below plaintiffs’ diversion on West Dairy Creek, and whose prior rights may be affected by a change in plaintiffs’ point of diversion. ① A change in point of diversion cannot be made if it will injuriously affect other users on the stream. Hutchinson v. *43Stricklin, 146 Or 285, 299, 28 P2d 225 (1933). Each permit which was granted to plaintiffs described the point of diversion from which water would be taken from West Dairy Creek. Vandehey’s and Vanderzanden’s diversion points were in Section 13, which is at “Dam A” on the diagram and the location of the present diversion works. Spieling’s point of diversion was Section 18, a point which is below, or downstream, from “Dam B.” In 1968 plaintiff Spiering petitioned the State Engineer for and was allowed a change in his point of diversion from Section 18 to Section 13, so that his point of diversion would coincide with that of Vandehey and Vanderzanden in Section 13. Thus, in this case, all of the relevant water rights of the plaintiffs to appropriate water from West Dairy Creek describe a point of diversion on West Dairy Creek in Section 13, which is the site of “Dam A.”

In 1954 the plaintiffs made a joint application for a reservoir permit authorizing them to impound and store water for the purpose of irrigation. The permit described the source of water to be impounded as West Dairy Creek and referred to the unnamed channel as a diversion ditch. As a result of the allowance of the application there was constructed what plaintiffs call “Dam B” which allows plaintiffs to impound and store water from West Dairy Creek. Plaintiffs’ point of diversion was not changed by the 1954 permit and it did not change the obligation of the defendants to see that the flow of water at plaintiffs’ point of diversion in Section 13 was properly regulated. For this purpose defendants have required that the plaintiffs maintain control and measuring devices at “Dam A” in order that the defendants State Engineer and Water-master may regulate and measure the flow of water to plaintiffs. It is defendants’ contention that they *44are merely enforcing the conditions of plaintiffs’ water rights which restrict plaintiffs’ rights to appropriate water to specified amounts and require regulation of the amount of water appropriated. Plaintiffs’ principal contentions are that their water could be as well measured at the point where they receive it into “Dam B” and that they, in fact, have changed their point of diversion without going through the administrative process because the unnamed channel has become a natural stream and therefore their diversion really is at the point where the natural stream enters their impoundment.②

ORS 540.310 requires that a control or measuring device be installed at the point where the water is diverted. The construction of “Dam A” apparently was the result of compliance with this statute. ③ (Plaintiff Vanderzanden was a party to the construction of *45“Dam A” but who built the dam or who owns the land on which, it is constructed is not relevant to this proceeding.) It is the responsibility of one who applies for and obtains a water right to see that a proper control mechanism and measuring device is provided. “Dam A” was the control and regulating works when the State Engineer made his survey in 1958. "Whether the unnamed channel became a natural stream also is immaterial to this case.④ The plaintiffs’ point of diversion for the waters of West Dairy Creek is the location set forth in their respective water certificates and the unnamed channel is merely a conduit used to convey the water to plaintiffs’ places of use. The use of a natural stream as a conduit for diverted water is not uncommon under Oregon water law. See In re Waters of Deschutes River, 134 Or 623, 286 P 563, 294 P 1049 (1930), appeal dismissed 290 US 590 (1933).

As mentioned above, an administrative procedure is provided by statute for the owner of a water right to change his point of diversion, ORS 540.520, by filing an application to do so with the State Engineer.⑤ The *46statute further provides that notice of the proposed change be published in a newspaper in the county where the rights are located so that others affected by such change may appear at a hearing to be held thereon and that the State Engineer will then proceed to make a determination as to whether or not the change can be effected without injury to existing rights. If the plaintiffs had followed this procedure in this case, other affected water right holders would have had an opportunity to object to a change in point of diversion if it adversely affected the enjoyment of their water rights. That plaintiffs were aware of this procedure is shown by plaintiff Spiering’s compliance with the procedure in making his change in point of diversion in 1968. ⑥

In summary, this is a declaratory judgment proceeding in which the plaintiffs seek to have the court change their point of diversion from that specified in their permits without going through the statutory procedure for change in point of diversion and, consequently, without notice to other water users who may be prior in time and right to the plaintiffs. For the reasons herein set forth, we agree with the trial court that the plaintiffs are not entitled to the relief requested.

Former opinion -withdrawn.

Plaintiff Vanderzanden was aware of the superior rights of the lower users on West Dairy Creek even before the construction of “Dam A.” At plaintiffs’ present point of diversion he dug a trench to divert the water from West Dairy Creek into the unnamed channel in 1953. Upon remonstrance by the owner of a higher priority water right on West Dairy Creek just below plaintiffs’ present point of diversion, plaintff Vanderzanden sandbagged the channel he had dug. It was this channel which plaintiff Vanderzanden dug and the rest of the unnamed watercourse, which plaintiffs now claim to be a -natural watercourse.

If plaintiffs’ contention is correct the result would be not only to change their point of diversion, but also to change the source of the irrigation water. The source is designated in the water certificates as being from West Dairy Creek. Not until events leading to this suit have plaintiffs maintained that their source was anywhere but West Dairy Creek. If plaintiffs were to apply for a new source they would have to make new applications for water rights and would lose their present priority. There is no statutory provision for a transfer of the source. If such an application were made, then the State Engineer for the first time in this matter would have before him the question of whether the unnamed channel was a natural stream and he could make his investigation and compile the necessary data accordingly.

The State Engineer in this situation is not authorized to require the building of a dam, as such, but only to require construction and maintenance of a headgate and measuring devices so that he can measure and control the amount of water which the permittee is actually diverting from the stream. A dam might be the logical means to be employed by the appropriator but whatever means the appropriator might employ to restrain the flow of water so that it would be delivered through a headgate with a proper measuring device installed would comply with the statute.

The trial court found that the unnamed channel had not become the natural channel. The court said:

“The plaintiffs contend that the unnamed channel has become the natural channel and that their rights are at the point of their dam at the site of the reservoir.
“This contention is not well taken. The rights of plaintiffs originate at the diversion point, i.e., at or near the West Dairy-Creek. A headgate and measuring device at this point will determine the amount of water being diverted to the unnamed channel and into the reservoir. It will also insure that users downstream with prior rights will not be jeopardized.”

Oliver v. Skinner and Lodge, 190 Or 423, 436, 442, 226 P2d 507 (1951), recognizes the procedure. It holds that the scope of the first appropriation is the measure of the right. If there are problems about the rights involved in a change in point of diversion “* * * [they] should properly have been submitted to the state engineer in support of an application for permission to change the point of diversion * * *.”

Oregon’s procedure is not unique in requiring an appropriator to secure the approval of an administrative body before changing the point of diversion.

“It is often provided by statute that an appropriator wishing to make a change in his point of diversion * * * shall first make application or petition to, and obtain the approval or permit of, a designated officer or tribunal. Such statutes have been enacted for the purpose of avoiding confusion and perfecting or preserving the record of water rights, and to put a stop to a multiplicity of actions because of such changes. * * *” 93 CJS 977, Waters § 189.