Appeal from Circuit Court, Washington County. Glen Hieber, Judge.
Thomas J. Moore, Hillsboro, argued the cause for appellants. With him on the briefs were Brink & Moore, Hillsboro.
John W. Osburn, Solicitor General, Salem, argued the cause for respondents. With him on the brief was Lee Johnson, Attorney General, Salem.
Foley, Judge. Langtry, Fort and Thornton, Judges. Schwab, Chief Judge, dissenting.
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
as 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 Watermaster'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
irrigation, storage, domestic, municipal, industrial, etc., and precisely the quantity and where and how ...