PACIFIC LIVE STOCK CO. v. HANLEY et al., 200 F. 468

ROSS, Circuit Judge (after stating the facts as above). The case shows that Silvies river rises in the mountains many miles northerly of a valley known as Harney Valley, in the state of Oregon, and flows southerly. About five miles from where it enters the .valley, and on the north side of

section 20, township 23 S., range 31 E., Willamette meridian, the river divides into two forks, known as the “east” and “west” forks, and then flows on for about 20 miles into a lake called Malheur Lake. The river forks on the land of the defendant Levens, Hanley’s lands beginning on the east fork a short distance below that of Levens, and 'extending down and along the east fork for about four miles. The complainant’s lands are still further down and on both forks of the river.

In its original bill, as will be seen from the statement of the case, the complainant alleged its ownership of those lands, and also alleged the acts of the defendants thereto which it claimed interfered with its rights. From those allegations it will be seen that they all related to «.lie wafers of Silvies river and its east and west forks, and that the only acts of Hanley and Hevens there complained of related to dams placed in those forks of the river and to ditches tdpping them, by which the waters of the river were diverted.

The supplemental bill expressly alleges that during the progress of the trial of the original suit the parties to it entered into an agreement defining their respective rights, which agreement was the basis of the original decree, for an alleged violation of which the present suit was brought. Obviously, • therefore, the first important thing to do is to ascertain what rights were by that decree adjudged to the complainant and to the defendants Hanley and hevens, what those defendants were permitted to do with respect to the waters there in question, and what they were inhibited from doing.

Turning to the original decree, as it is expressly stated in the present bill, we see: (11 That it, among other things, adjudged that the said W. D. Han-ley, H.

C. hevens, and various other parties not necessary to be mentioned be, and they were, “perpetually enjoined and restrained and strictly inhibited from diverting any of the water of Silvies river and of said east and west forks thereof from the channels thereof, and from impeding the flow of any of said water to and upon said lands of your orator as said water had theretofore been wont to flow thereon when not interfered with by said defendants and said intervener and that they remove all dams in the channels of said river or of said forks thereof, and that they be perpetually enjoined and restrained and strictly inhibited from rebuilding the same and from in any manner obstructing the flow of the waters of said river and of said forks thereof, save and excepting only to the extent and at the times and in the places and for the purposes set forth in said decree”; and further adjudged that said decree should run in favor of the complainant, its successors and assigns, and against the defendants, their heirs, personal representatives, successors, and assigns.

(2) The court having found that Hanley owned the following described lands, to wit: “All of sections 21 and 27, all of

section 22 except the S. Yz of the S. W. %> the W. Yz of

section 26, all in township. 23 S., range 31 If., Willamette meridian” — that he leased and was in possession of all of sections 23, 25, and 35 of the said township and range, and had one dam in the east fork of said river in

section 21, township 23 S.', range 31 If., Willamette' meridian, and maintained two ditches leading from that fork immediately above the dam, one of which ran southeasterly from the east side of the said fork, and the other along the west side thereof for a short distance, onto the above-mentioned

section 27, he was by the original decree “allowed to divert and use so much of the waters of said Silvies river as might be necessary to irrigate said sections 27, 35, 21, 23, and 25, the N. Yz of

section 22, the N. Yz °f the S. Yz of

section 22, and the S. Yz of the S- If. Yi °t

section 22, and the W. Yz of

section 26 in said township 23 S., range 31 E., Willamette meridian, and said defendant was allowed by said decree to maintain said dam and ditches and divert waters thereby for irrigating said lands only and was allowed by said decree to maintain said dam and divert waters thereby only for the period beginning on the 5th day of May and ending on the 1st day of July of each year, and by said decree said defendant was permitted a.nd allowed to maintain said dam and said ditches only as the same were constructed and built at the time of the entry of said decree; and it was further ordered and adjudged by said decree that if it at any time and while said dam is open, so that it does not obstruct the flow of the water in said river, and from natural causes the waters of said east fork of Silvies river shall overflow its banks upon the land of said defendant, or naturally run 'through either of the ditches of said defendant leading from said dam above described, said defendant shall have the use and enjoyment of so much of the said water of said river as may come upon his land in the manner aforesaid, and during such time as the same may run thereon from natural causes and without any obstruction of the channel of said river.”

(3) In respect to the ditch built by Hanley' for drainage purposes and tapping the east fprk of the river on

section 27, the said original decree provided: “That the said W. D. Hanley may maintain his ditch constructed across a portion of the land above described leading out of the east fork of Silvies river on the east side thereof on the S. ya of

section 27, above described, and extending southeasterly until it enters into and upon the land of the complainant on or near the S. W. % of the S. E. % of

section 26, township 23 S., range 31 E., W. M., but shall maintain said ditch for the purpose of draining water from the surface of the land above described, and not for the purpose of irrigation. If at any time and while the dam of the said W. IX Hanley is open so that it does not obstruct the flow of the water in said river, and from natural causes the waters of said east fork of said Silvies river shall overflow its hanks upon the land of the said W. D. Hanley, or naturally run through either of the ditches of the .said W. JX. Hanley leading from the dam of the said.W.

IX Hanley first above described (the 21 dam), said defendant W. D. Hanley shall have the use and enjoyment of so much of the said water of said river as may come, upon his land in the manner aforesaid, and during such time as the same may run thereon from natural causes and without any obstruction of the channel of said river.”

(4) The original decree also provides as follows: “That th.e defendant H. O. Levens may maintain his dam in the west fork of Silvies river where the same is now constructed and built in and across said river in

section 20, township 23' S., range 31 E., Willamette meridian, whenever the waters in said river at the head of said dam shall so recede that the surface of the water shall be 2 feet below the footboard on the top of the structure of said dam, which footboard is 6V12 feet above the board bottom of said dam, and from said time until the 20th day of July of each and every year, and that the said defendant may retain the waters of said Silvies river and may divert and use so much thereof by means of his said dam and ditches now leading therefrom as shall be necessary to irrigate the W. % of the N. W. % and the S. W. % and lots 1 and 2 of

section 20, township 23 S., range 31 E., 'Willamette meridian, during the period aforesaid, and also as much as may be necessary to irrigate during said period

section 19, in said township and range, so long as the said defendant said H. C. Levens’ lease thereon shall continue, and as he shall be in possession and enjoyment thereof, and, should the waters of Silvies river during any year not recede by the 15th day of Hay at the head of the said dam of said Lev-ens so that the surface of the water at said point shall be 2 feet below said footboard of said dam, then the said Levens may maintain his dam in the manner as aforesaid from the 15th day of May until the 20th day of July of said year. If at any time while the dam of the said defendant H. C.

I.erens is not maintained and while the said dam is opon so that the water may flow therethrough without obstruction thereby the waters in, Silvies river where the same flow through the above-described land, or any thereof, shall he of such height that any portion of such waters shall overflow any of the lands of the said II. O. Levens above described, either by overflowing the banks of said stream, or by running through the ditch of the said H. 0. Levens as the same is now constructed and maintained, the said defendant H. O.

Levens shall have the use of such water during the time that the same may so flow upon his hinds, and so long as the water may so flow upon his lands without let or obstruction from his dam.” These provisions of the original decree seem to us quite clear. The rights conferred thereby on Hanley and Eevens related only to the waters of Silvies river and its east and west forks, and to the ditches tapping those forks and the dams placed therein.

No other interference with the complainant’s alleged rights was charged in the hill in the original suit against those defendants than such as grew out of those dams and ditches. No mention was made in either the pleadings or decree in that suit of either the Foley slough or the Embree slough, both of which, according to the evidence in the present suit, were well and distinctly known by name in the community, the former of which puts out from the river on its east side about 10 miles above where the river forks.

This slough has a wide and deep channel for a long distance, hut gradually loses its depth toward the south, and finally disappears on Hanley’s lands a little above where Embree slough commences. The bed of Foley slough, being higher than the bed of the river, carries no water except at times when the water of the river is high, but in flood times it carries more water than does the river itself. As has been sai'd, no mention was made in either the pleadings or decree in the original suit of either the Foley slough or the Embree slough.

The prayer of the bill in that case was, among other things, that the defendants he perpetually enjoined “from diverting any of the water of Silvies river or the east or west fork thereof from their channels or impeding the flow of any of said water down to and upon your orator’s said lands as said water has heretofore been wont to flow therein when not interfered with by the defendants, and that said defendants and each of them may be required to remove their said dams from the said channels of Silvies river and said forks thereof, and may be perpetually enjoined and restrained from rebuilding the same or in any manner obstructing the flow of said water,” and the inhibition portion of the original decree against all of the defendants thereto, including Hanley, was that they be perpetually enjoined “from diverting any of the water of Silvies river and any of the water from the east fork of Silvies river and any of the water from the west fork of Silvies river, from the channels of said rivers, and from the channels of each of said rivers, and that they be and they and each of them are perpetually enjoined and restrained and strictly inhibited from impeding the flow of any of said water to and upon the lands of the complainant hereinbefore described as the said water has heretofore been wont to flow thereon when not interfered with by the said defendants and by the said intervener, either jointly or severally, and that they be and they are, and that each of them be and he is, required to remove all and any dams which they or either of them may have, or which any one of them may have, in the channels of Silvies river or in the channels of the east fork of Silvies river or in the channels of the .west fork of Sil-vies river, and that they be and they are and that each of them be and each of them is hereby perpetually enjoined and restrained and strictly inhibited from rebuilding the same, or any thereof; and that they be and they are, and that each of them be and each of them hereby is, perpetually enjoined and restrained and strictly inhibited from in any manner obstructing the flow of the waters of Silvies river and from in any manner obstructing the flow of the waters of the east fork thereof and from in any mánner obstructing the flow of the waters in the west fork thereof, and from obstructing the flow of the waters of said rivers, or any thereof, in all and in each of the channels thereof, save and except as is in this decree more particularly set forth.” There is not only nothing- in any of these provisions in terms relating to the well-known Foley slough, but nothing indicating any intention that they should be held to apply to it.

On the contrary, there is among the evidence in the present suit some testimony tending to show that the original suit was never intended to apply to it. The witness Gilcrest, who was at the time of the bringing of that suit and for years had been the superintendent of the appellant, having charge of its business in Harney county, testified in the present suit that he gave the solicitor who brought the original suit much of the information upon which it was based, and in the course of his testimony we find the following: ‘•Q.

You were not very well acquainted with tlie Foley slough in 1900, when you testified here in this case, were you ? A. Yes; pretty familiar with it. “Q. You remember to have testified in that ease? A. I do. “Q. Didn’t you testify then that Foley slough went into Nine Mile slough, and went away over to Saddle Butte? A. I did so testify, and corrected my testimony. “Q. Yes; after Mr. Cronin had told you that it didn’t. A. Yes; and I was entirely honest in my testimony at the time. “Q. I haven’t the slightest doubt of that, but yoxi did not know.

You not only didn’t know, hut you had a whole lot of misinformation, didn’t you? A. No; it wasn’t misinformation. It was my own failure to have followed the slough channels down to their termination. “Q. At least, if it was no misinformation it was a very -wrong conception of it, wasn’t it? A. Yes, sir; it was a wrong conception of where the Foley slough water finally went. I did not know at that time exactly where it did go, a large part of it. “Q. Yes. And from the time you first came here and got acquainted with these properties and this -water here up until the time Mr.

Cronin told you in 1900, after you testified, you always thought that the water -was delivered away over east tliere and never got back to the river at all, didn’t you? A. I thought that the water of Foley slough entered the Nine Mile slough or Poison Creek slough in the valley. “Q. And carried a vast volume of water away from the river and it never got back? A. That was my belief at the time. “Q. And it was only after you testified and then talked to Mr. Cronin about it, or he talked to you about it, that you found you were entirely wrong? A.

I found I was wrong in that testimony.” Embree slough, it appears from the record, commences on Hanley’s land a short distance below where the banks of Foley slough disappear; and across Embree slough and its branches Hanley built dams and dikes. Indeed, it seems from the evidence he maintained some of them at the time of the commencement of the original suit, no mention of which, however, was made in the original bill of complaint.

To the extent that such dams and dikes were necessary to irrigate the land of Ilanley in sections 21, 22, 23, 25, 26, 27, and 35 of township 23 S-, range 31 E., Willamette meridian, Hanley was in our opinion clearly entitled to build and maintain such obstructions; for by the original decree, as has been seen, he was expressly given the right to maintain his dam in the east fork of Silvies river as the same was then constructed in

section 21, and to maintain his ditches leading from that dam in their then condition, and by means of that dam and those ditches to retain and divert the waters of Silvies river from the 5th of May to the 1st day of July of each year, and use so much thereof as shall be necessary to irrigate his said lands in the said township 23. The record shows that the purpose for which the water was necessary for Hanley’s land, as well as that of the complainant, was the growing of natural grasses for the use of stock, which use necessarily required the spreading of the water over the ground.

And, as the record also shows that Hanley’s said land was not level, but contained numerous depressions which run into and form Embree slough and its branches, the building of dams or other impediments to the flow of the water in that slough in order to hold the water back until it overflowed the banks of the slough, and covered all of the surface of the land authorized to be irrigated with it, was a proper, if not the only, way in which he could avail himself of the right conferred upon- him by the decree.

Of course, in the exercise of that right good faith will always be required by the courts, and the right only extends to the reasonably necessary use of the water for the proper irrigation of the lands specifically described, and confers upon Hanley no right to carry that water beyond the boundaries of his own land.

When that use is satisfied, the water can no longer be withheld by him or those holding under him, but must be allowed to flow naturally back to the river by way of the Embree slough and its branches; for not only is there no provision in the original decree requiring- such water to be returned to the river in any other way or at any other point, but the record shows that the slope of the ground is such that the Embree slough is its natural and only course back to the river.

The court below held that only one of the dams erected by Hanley in the Em-bree slough and its branches had the effect of diverting any of the water so used by him beyond his own land, and that was the dike erected in the N. E. % of

section 25, which the decree appealed from rightly directs to be removed. We are also of opinion that the trial court was right in its conclusion that the extension by Hanley after the entry of the original decree of the 21 ditch was not a violation of that decree, as such extension was necessary to enable him to use the water thereby authorized in the irrigation of the lands specifically described in the decree; and the record in the present case shows that it was so held by the judge who rendered the original decree on contempt proceedings brought against Hanley for a’ violation thereof in so doing.

It is urged on the part of the appellant that since the entry of the original decree Hanley rebuilt the dam in the east fork of the river in

section 21, and made it a greater obstruction to the flow of the water of the river than it was when that decree was rendered, and also enlarged the ditch leading from that dam on the east side of the river,' by both of which means he diverted more water from the river than is authorized by the original decree.. The evidence shows that in 1906 the condition of the old dam had become such as to make its repair necessary, and it was accordingly repaired or rebuilt under Hanley’s direction.

We have read the testimony of the complainant’s witnesses Cronin, Clark, and Mace as to the building of the old dam, and that of Hanley’s witnesses McLaren and Forbes, and of Hanley himself, in respect to the rebuilding of the dam, and, like the court below, we are unable to find from it that the dam was so repaired as to be any more of an obstruction to -the natural flow of the river than was the original dam.

The contention that the 21 ditch extending easterly from that dam has been by Hanley so deepened since the original decree as to divert more water from the river than was thereby authorized we also think without merit. As a matter of course, the ditch could carry no more water from that point on the river than could come through its head-gate.

The man who built the headgate about the year 1898 testifies that it has never been changed, as does Hanley; and the trial judge says in his opinion in respect to the headgate and the alleged deepening of the 21 ditch: “Nor do I think the evidence shows that the ditch has been deepened, to the injury of the complainants.

Hanley and his employés who have used it for irrigation purposes and consequently have been familiar with it since the decree all testify that it is now practically in the same condition that it was at that time, and that it has not been widened or deepened so as to take any more water from the river than at the date of the decree. I find no evidence in the record of the actual depth of the ditch either at the time of the decree or since. Mr.

Foster, an engineer who made a survey and some measurements in 1899, two years before the decree, says that the ditch from the headgate east was then about 2% feet deep, but there is no evidence of its depth at the date of the decree, or that it had not been changed or deepened between the time of Ifoster’s examination and the decree, nor is there any evidence in the record of its depth at the present time. _Gil-crest, the complainant’s manager, testifies that a short time before he ‘was called as a witness he measured the headgate, and found it to be 4 feet and 8 inches deep, but Clarke says that the bottom of the headgate, as originally put 'in, was 2 feet below the bottom of the ditch, so that" Gilerest’s testimony cannot be taken as evidence of the actual depth of the water.” In respect to the alleged violation by Hanley of the original decree in changing the channel of the river near the Orphan’s headgate, and the illegal construction by him of two dams in the east forl^ of the river below the drain ditch, it is sufficient to say that the record shows that they were the subject of investigation in the contempt proceedings already referred to, and subsequent to which and long before the commencement of the present suit Hanley removed those dams and restored the river to its original channel.

In respect to the ditches leading out of the west side of the east fork of the river through which Revens and Hanley were by the original decree permitted to take sufficient water from that fork for the irrigation of their lands therein specifically described, we are of opinion that the evidence shows that those provisions of the original decree have been evaded by both Hanley and Heveas in the taking therefrom of more water than was necessary for the purpose permitted, such excess being used by Hanley, and permitted by Revens to be so used by him, on land upon which by the original decree it was forbidden to be used.

In that respect the decree appealed from must be modified. A Villi respect to the drain ditch, counsel for the appellant insist that it is and has been kept open by Hanley at all stages of the river, ‘■'draining even the stock water away from the complainant at the lower stages of the river,” and that it practically diverts the main body of the water of the east fork of the river at all times, except when the water of the river is high. Recurring to the original decree, we repeat the provision in respect to the drain ditch.

After conferring, in its eleventh subdivision, upon Hanley the right to maintain his dam in the east fork of the river on

section 21 and to divert such quantity of the water thereof at that point as is necessary for the irrigation of the lan.ds therein specifically described, the original decree proceeds as follows: ‘’That the said W. D. Hanley may maintain Ms ditch constructed across a portion of the land, above described leading out of the east fork of Sil-vios river on the east side thereof on the S. % of

section 27 above described, and extending southeasterly until it enters into and upon the land • of the complainant on or near the S. W. % of the S. E. % of

section 26, township 23 S., range 31 K., Willamette meridian, but shall maintain said ditch for the purpose of draining water from the surface of the land above described, and not for the purpose of irrigation. If at any time and while the dam of the said W. I>. Hanley is open so that it does not obstruct the ilow of the water in said river and from natural causes the waters of said east fork of Silvios river shall ovei'flow its banks upon the land of the 'said W. I). Hanley, or naturally run through either of the ditches of the said W. I>. Hanley leading from the dam of the said W. D.

Hanley first above described, said defendant W. D. Hanley shall have the use and enjoyment of so much of the said water of said river as may come upon his land in the manner aforesaid, and during such time as the same may run thereon from natural causes and without any obstruction of the channel of said river.” Here is express authority for the maintenance of the drain ditch as then constructed from the east fork of the river extending southeasterly across the S. of

section 27 to the land of the complainant company at or near the S. W. RÍ of the S. E. % of

section 26, township 23 S., range 31 E., Willamette meridian, for the purpose of draining water from the surface of the lands of Hanley therein specifically described, and an express inhibition against the use by Hanley of any of the water of the drain ditch for irrigation purposes that is thereby taken from the river; the next clause of the same subdivision of the’ original decree providing, in effect, that at any time the dam of Hanley in the east fork of the river on

section 21 is open,' and does not obstruct the flow of the water thereof, if “from natural causes the waters of said east fork of Silvies river shall overflow its banks upon the land of the said W. D. Hanley, or naturally run through either of the ditches of the said 'W. D. Hanley leading from the dam of the said W. D. Hanley first above described (the dam on

section 21), said defendant W. D. Hanley shall have the use and enjoyment of so Inuch of the said water of said river as may come upon his land in the manner aforesaid, and during such time as the same may run thereon from natural causes and without obstruction of the channel of said .river.” It is manifest, therefore, that such overflow waters of the east fork of the river as may come upon Hanley's land while his dam is open and does not obstruct the natural- flow of the river he is expressly given the use and enjoyment of, and while he is expressly inhibited from using the drainage ditch on

section 27 for irrigation, or for any other purpose than of the drainage of the surface water from the specifically described lands, no other limitation is imposed in respect to the ditch or ditches through which he may use and enjoy such overflow waters from the east fork of the river. The original decree, however, permits the maintenance by Hanley of his drain ditch for drainage purposes only and for the purpose of draining water from the surface of only certain specifically described lands of his.

Beyond that limited purpose he is by that decree expressly enjoined from maintaining or using that ditch or any of the waters thereof; and it necessarily follows that neither Hanley nor his successors in interest have any right to thereby divert any water from the river when its waters are not so high as to make it necessary or proper by means of the drain ditch to drain surface water from the lands specifically described in the 11th subdivision of the original1 decree.

That Hanley clearly violated the provisions of the original decree by subsequently constructing in the drain ditch a stopgate and an outlet- or tapga;te by means of which he used some of the waters of that-ditch for irrigation is shown by the testimony of Hanley himself, as well as that on the part of the appellant.

The claim on his part that Such acts were committed with the consent of the appellant, and resulted in no injury to it, was presented to and considered by the judge who rendered the original decree when Hanley was cited to show cause upon that, and other grounds, why he should not be punished for contempt.

Subsequent to those proceedings and long before the commencement of this suit, the evidence shows he removed the stopgate from the drain ditch, and never thereafter used any of the water of that ditch for irrigation, but the evidence fails to show that he ever has removed from the said ditch the outlet or tapgate, which he must be compelled to do.

A careful consideration of the evidence further shows in our opinion that Hanley has, ^notwithstanding the provisions of the original decree, kept, and continues to keep, the headgate of the drain ditch open at low stages of the water of the east fork of the river and at times when it was, and is, not necessary or proper to be kept open for the purpose permitted by the original decree, and in so doing has committed and does commit a clear violation thereof.

Foster, the appellant’s engineer, testified that he measured that headgate in 1899, and that it was then 7 feet wide, and that at the time of testifying (the year after the commencement of the original suit) it was 12 feet and 5 inches wide. We find no evidence of its width at the time of the rendering of the original decree, but testimony on the part of the appellees to the effect that it has not been enlarged since that time.

There is, however, uncontradieted evidence to the effect that the floor of the headgate is only 1.8 feet higher than the bottom of the river, and that the water thereof will, and does, flow into the drain ditch at practically every stage of the river when the headgate is left open. For the reasons stated, the cause is remanded to the court below, with directions to modify the decree in accordance with the views above indicated, and, as so modified, it will stand affirmed, the .parties to pay their own costs in this and the lower court.