PACIFIC LIVE STOCK CO. v. SILVIES RIVER IRR. CO. et al., 200 F. 487

ROSS, Circuit Judge (after stating the facts as above). As appears from the pleadings, the sole question between the parties to this cause is whether there are surplus waters of the Silvies river during the times of high water, and, if so, whether the appellees have the right to divert them for the purpose of irrigating land not riparian to the stream. It sufficiently appears from the evidence in the case of Pacific Live Stock Co. v. W. D.

Hanley et al. (No. 2,036) 200 Fed. 468, just decided, which by stipulation of the parties is added to the record herein, that in the spring time during the melting of the snows the river brings down from the mountain enormous quantities of flood waters ; and that the quantity thereof is so great as to be at such times beyond the needs of the appellant or any of the other riparian proprietors upon the river would seem to be conclusively shown by the fact, appearing from the evidence to which reference has been made,that they create more than 6,000 acres of swamp and tule lands upon the appellant’s tracts, as well as furnish the larger part of the waters of Malheur Lake in the southern part of Harney valley.

And while in the findings of the court below in the present suit there is this finding: •“All of tbe water of Silvies river is necessary for tbe irrigation of tbe complainant’s lands and the lands of others irrigated from tbe waters of said river as above described, and wbicb are annually irrigated by tbe wa-. ters of said river if undisturbed, and by tbe diversion contemplated by tbe defendants of tbe water of Silvies river, tbe complainant and others owning lands irrigated from said river as above described will be deprived of valuable feed and crops, their lands rendered less valuable, and the complainant will be greatly damaged and injured” —there is this also in its opinion filed along with its findings and decree : “Tbe defendant company plans to intercept the flow of tbe water near tbe bead of the valley and divert it from tbe watershed to irrigate arid lands to tbe east.

Tbe complainant and other parties own large quantities of valuable land naturally irrigated from the river below the point of the'8 defendant’s proposed diversion, and tbe object of this suit is to prevent such diversion. Tbe defendants claim tbe right to take tbe surplus water only and disclaim any intention of interfering with tbe rights of any of tbe settlers. But it is not shown that there is any surplus water.

Indeed, tbe evidence in this case tends strongly to support the complainant’s position that all tbe wa. r is necessary for tbe irrigation of tbe land in private holdings, and which is annually irrigated by tbe overflow if undisturbed. Until it is adjudicated in some appropriate proceeding that there is a surplus of water and the quantity thereof, I do not think the defendant should be permitted, to interfere with the natural iiow, and thus invite numerous lawsuits and, controversies between it and the settlers.

Decree will therefore be entered, as prayed for in the bill, but a provision, may be inserted at the foot thereof, reserving the right to the defendants to apply for a vacation of the injunction if it should hereafter be determined that there is any surplus water subject to appropriation by it” In accordance with the views thus expressed by the trial judge, he added at the end oí the decree enjoining the appellees from diverting any of the waters of the river the clause from which the present appeal is alone taken, which clause reads as follows: “It is further considered, ordered, adjudged, and decreed that there be reserved to the defendants above named, and to eac-h of them, the right to apply to this court at any time hereafter for a vacation of the injunction if it should hereafter bo determined, in some appropriate proceeding that there is any surplus water subject to appropriation by them or by either or any of them.” The decree having first perpetually enjoined the defendants from diverting any of the waters in question, the added clause rendered its provisions inconsistent and undeterminative of the only issue in the case.

From the decree, taken in connection with the opinion, it is. we think, quite evident that the court below was of opinion that as between the appellant and the appellees certainly the river carried some surplus water during its high stages which should be left to future ascertainment.

That being so, and the laws of the state of Oregon in force at the time of the decree appealed from recognizing the rights of riparian proprietors to a limited extent only, and providing for the right of appropriation of water of the nonnavigable streams of the state for beneficial uses, we are of opinion that the decree here in question should he reversed and the cause remanded for further proceedings in accordance with those laws.

The latest state statute upon the subject, referred to as the Water Code, was enacted February 24, 1909 (Faws 1909, p. 319), and is entitled: “An act providing a system for the regulation, control, distribution, use, and right to the use of water, and for the determination of existing rights; thereto within the state of Oregon, providing penalties for its violation and appropriating money for the maintenance thereof, and declaring an emergency.” That act divides thei state into two water divisions, provides for the division of each water division into water districts, creates a hoard of control, to consist of the state engineer and the superintendents of the two waiter, divisions, provides for the appointment of 'a water master for each water district, and prescribes the duties of the respective officers.

Among the numerous provisions of the act are sections 11, 12, 13, and 14, which read as follows: “Sec. 11.

Determination. — Upon a petition to the board of control, signed by one or more water users upon any stream, requesting the determination of tlie relative rights of the various claimants to the waters of that stream, it shall l>o 1he duty of the board of control, if, upon, investigation, they find the fads and conditions are such as to justify, to make a determination of the said rights, fixing a time for beginning the taking of testimony and the making of such examination as will enable them to determine the rights of the various claimants.

In ease suit is brought in the circuit court for the determination of rights to the use of water, the ease may, in the discretion of the court, be transferred to the board of control for determination as in this act provided. “Sec. 12.

Notice of Proceedings. — The board shall prepare a notice, setting forth the date when the engineer will begin an investigation of the flow of the stream and of the ditches diverting water therefrom, and a place and a time certain when the superintendent of the water division in which that stream is situated shall begin the taking of testimony as to the rights of the parties claiming water therefrom.

Said notice shall be published in two issues of one or more newspapers having general circulation in the counties in' which such stream is situated, the last publication of said notice to be at least thirty days prior to the beginning of taking testimony by said division superintendent, or for the measurement of the stream by the state engineer, or his assistant. The superintendent taking such testimony shall have the power to adjourn the taking .of testimony from time to time and from place to place, to suit the convenience of those interested. “Sec. 13.

Notice to Claimants. — It shall be the duty of said division superintendent to send by registered'mail to each person, firm or corporation, hereinafter to be designated as claimant, claiming the right to the use of any of the waters of said stream, and to each person, firm or corporation owning or being in possession of lands bordering on and having access to said stream or its tributaries, in so far as such claimants and owners and persons in possession can reasonably be ascertained, a similar notice setting forth the date when the state engineer or his assistant will begin the examination of the stream and the ditches diverting the waters therefrom, and also the date when the superintendent will take testimony as to the rights to the water of said stream.

Said notice must be mailed at least thirty (30) days prior to the date set therein for making the examination of the stream or the taking of testimony. “Sec. 14.

Statement of Claimant. — The division superintendent shall, in addition, inclose with said notice a blank form on which said claimant or owner shall present in writing all the particulars necessary for the determination of his right to the waters of the stream to which he lays claim, the said statement to include the following: “The name and postoffiee address of the claimant. “The nature of the right or use on which the claim is based. “The time of initiation of such right or the commencement of such use, and if distributing works are required. “The date of beginning of construction. “The date when completed. “The date of beginning and completion of enlargements. “The dimensions of the ditch as originally constructed and enlarged. “The date when water was first used for irrigation or other beneficial purposes, and if used for irrigation, the amount of land reclaimed the first year, the amount in subsequent years, with the dates of reclamation, and the amount and general location of the land such ditch is intended to irrigate. “The character of the soil and the kind of crops cultivated, and such other facts as will show a compliance with the law in acquiring the right.” Provision is also made for the taking of testimony and a hearing thereon, the determination by the board of control of the several rights to the waters of the stream, the issuance of water certificates in accordance with such determined rights, the filing of the evidence .and order of the board of control in the circuit court of the state, .after which

section 26 of the act provides: “The proceedings shall be as nearly as may be like those in a suit in equity, except that any proceedings, including the entry of a decree, may be had in vacation with the same force and effect as in term time. Within thirty days from the filing of such evidence and order in the circuit court, or within such further time as the court may for good cause allow, any party may lile exceptions to the determination.

If no exceptions shall be filed, the court shall on the day set for hearing enter a decree affirming the determination of the board.” Sections 30 and 34 of the act are as follows: “See. 30. Rehearing. — Within six months from the date of the decree of the circuit court determining the rights upon any stream, or if appealed within six months from the decision of the Supreme Court, the board of control, or any party interested, may apply to the circuit court for a rehearing upon grounds to be stated in the application.

Thereupon, if in the discretion of the court it shall appear that there are good grounds for the rehearing, the circuit court, or judge thereof, shall make an order fixing a time and place when such application shall be heard. The clerk of the circuit court shall, at the expense of the petitioner, forthwith mail written notice of said application to the board of control and to every party interested, and state in such notice the time and place when such application will be heard.” “See. 34.

Duty of AVater Right Claimants. — Whenever proceedings shall be instituíed for the determination of the rights to the use of any water, it shall be the duty of all- claimants interested therein to appear and submit proof of their respective claims, at the time and in the manner required by law; and any such claimant who shall fail to appear in such proceedings and submit proof of his claims shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in such proceedings, and shall be held to have forfeited all rights to the use of said water theretofore claimed by him.

Any person, association or corporation interested in the water of any stream upon whom or which no service of notice shall have been had of the pendeiicy of proceedings for the determination of the rights to the use of the water of said stream, and who or which shall have no actual knowledge or notice of the pendency of said proceedings, may at any time prior to the expiration of one year after the entry of the determination of the board, file a petition to intervene in said proceedings.

Such petition shall contain, among other things, all matters required by this act, of claimants who have been duly served with notice of said proceedings and also a statement that the intervener had no actual knowledge or notice of the pendency of said proceeding. Upon tlie filing of said petition in intervention, the petitioner shall be allowed to intervene upon such terms as may be equitable, and thereafter shall have all rights vouchsafed by this act to claimants who have been duly served.” There are numerous other provisions of the act of the state not necessary to be here mentioned.

In the view we take of the case, it is unnecessary to order the evidence asked for by the appellees to be brought here, and their motion to dismiss the appeal is denied. The judgment is reversed and the cause remanded, with directions to allow the parties a reasonable time to take proceedings under the above-mentioned statute of the state of Oregon and in' the event they do not proceed thereunder within a reasonable time to require all parties in interest to interplead herein, and then to proceed to a determination of the issues between them in accordance with the laws of the said state.