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order to make a valid appropriation of water, it is required to be made for some beneficial purpose then existing or contemplated, and that the amount of water appropriated must be restricted to the quantity needed for such purpose.

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3. Where there is no express grant or sale of a ditch or water-right mentioned in the deed of the land, other than may be included in the use of the word "appurtenances," the question is whether the interest of the grantor in such ditch, and right to the use of the water, would be conveyed or pass to the grantee by such deed. The maxim of the law is that whoever grants a thing is supposed also, tacitly, to grant that without which the grant would be of no avail. Where the principal thing is granted, the incident shall pass. Co. Litt. 152a. A grant of real estate will include whatever the grantor has power to convey which is reasonably necessary to the enjoyment of the thing granted. 3 Washb. Real Prop. *627. By the grant of a mill, or the grant of land with the mill thereon, the waters, floodgates, and the like, which are of necessary use to the mill, pass as incident to the principal thing granted. Shep. Touch. 989. "Nor," says one text-writer of note, "is the word' appurtenances' necessary to the conveyance of the water-right in such cases, because the incident goes with the principal thing, and that this principal is specially applicable to water privileges in grants. Ang. Water-Courses, § 153a. Where the right to the use of a ditch and water exist in favor of land conveyed by deed, and without which the land would be valueless, and constituted, perhaps, the only inducement for the purchase, they will pass by the deed without the use of the word "appurtenances." The case of Cave v. Crafts, 53 Cal. 135, is in point here. There the question involved the use of water for the purpose of irrigation, as appurtenant to the lands acquired, and the court say: "The word ' appurtenances' is necessary to the conveyance of the easement. The general rule of law is that, when a party grants a thing, he, by implication, grants whatever is incident to it, and necessary to its beneficial enjoyment. The incident goes with the principal thing. The idea and definition of an easement to real estate granted is, a privilege off and beyond the local boundaries of the lands conveyed." In Tucker v. Jones, 8 Mont. 225, 19 Pac. Rep. 571, the plaintiff Tucker only acquired whatever possessory rights and the improvements thereon his grantees. Pierce and Durham, had to the lands. As the deed conveying the lands contained no express grant or sale of the ditch or water-right, except as it was included in the use of the word "appurtenances," the question was whether the interest of Pierce and Durham in the ditch, and the right to the use of the waters of Rattlesnake creek, were conveyed in the deeds to the lands from those persons to the plaintiff, Tucker. The court say: "When Pierce and Durham conveyed their possession of the land with its appurtenances, they also conveyed their interest in the ditch and water-right, which was necessary to the cultivation, use, and enjoy

ment of the land just as certainly and as fully as if they had described it in express terms by the deed itself." As this phase of the case may be easily disposed of upon the undisputed facts, it will be sufficient to say that the evidence shows that Clark Rowland and Joseph Cox were homestead settlers upon the public domain, to whom, in due course of time, were issued patents by the government to the lands upon which they had respectively settled in 1877; that the defendant, W. H. Winters, derives his title to the lands now owned and occupied by him, the same being the lands settled upon by the said Rowland and Cox, by deeds of conveyance from them, with the usual covenants and warranty; that before and at the time of such sale and conveyance there were important waterrights connected with such lands, and used for the purpose of their irrigation, and without. which such lands were of little value; and that at the time of the appropriation of the water for uses specified by them and the defendant all the lands over and across which it was conveyed were unoccupied public lands of the government.

Upon this state of facts, it is clear, then, that when Rowland and Cox conveyed, by their deeds, the lands respectively settled upon by them with their appurtenances, they also conveyed their interests, respectively, in the ditch and waterright which was connected therewith, and necessary to the cultivation and enjoy. ment of such lands, as much so and as certainly as if they had so declared by express terms in their deeds. In such case, within the principle already announced, a grantor conveys by his deed, as an appurtenance, whatever he has the power to grant which is practically annexed to the land at the time of the grant, and is necessary to its enjoyment in the condition of the estate at that time. But the theory upon which the plaintiff has brought his suit for an injunction, and what he is seek ing to establish by his evidence, is that Sheep Creek ditch is an ancient watercourse flowing through his land in two well-defined channels; that it has so continued to flow from time immemorial, without interruption or abatement, until the spring of 1888, when the defendant diverted and appropriated all of its waters, and that as a riparian owner he has a right to have its waters continue to flow in its channels through his land without interruption or diminution. His own and other testimony of those similarly situated shows, in substance, that he purchased the land he now occupies, and through which Sheep Creek ditch runs, from the state of Oregon in 1880, and at that time its waters were flowing through his land in well-defined channels, and so continued to flow in about the same amount from year to year, varying some with the season, but at no time less than 1,000 inches, until the spring or summer of 1888, when its diversion and appropriation by the defendant, together with an exceptionally dry season, affecting its supply, caused its channels to become partially or almost wholly dry, so much so, at least, as to deprive him of water for irrigating

his land, stock, and domestic purposes, greatly to his damage, which is variously estimated, but by no witness at less than $500 testifying in his behalf. His testimony designed to prove that Sheep Creek ditch is an ancient water course, and that the waters flowing in its channels are its natural waters, as distinguished from waters diverted from Little Sheep creek, and turned into Sheep Creek ditch, is derived principally from the opinion of witnesses based on the appearance Sheep Creek ditch presented about the time of his purchase of his land, and subsequent thereto, with some little exception, not of much value for want of particularity and attention at the time to the subject-matter now of inquiry. These witnesses, judging in the appearance Sheep Creek ditch then.esented, express the opinion that it is a natural water-course, and that the waters flowing in its channels are its natural waters, with perhaps some little diminution. At the same time, some of these witnesses testify that the willows and cotton wood growing along its course were very smail eight years ago, and that the soil was materially different from that on Prairie creek, not far distant, and which is conceded to be a water-course; one of them saying that he did not know of any other creek in the whole Wallowa valley that had sod like Sheep Creek ditch, indicating by the recent growth of the willows, and the nature of the soil through which Sheep Creek ditch has cut its channels, that it is not an ancient watercourse, whose waters have been accustomed to flow therein regularly or continuously from time immemorial. The plaintiff and some of his witnesses admit that they knew and understood at the time of his purchase and settlement, as well as their own, that the grantors of the defendant, and others above him on Sheep Creek ditch, claimed to have diverted the waters of Little Sheep creek by means of dams, ditches, gulches, and ravines, or dry draws, into what is now known as "Sheep Creek Ditch,” and to be entitled to the use of its waters by prior appropriation. To better understand the case, we must now turn to the evidence for the defendant, which shows that the grantors of the defendant, and three other persons, in 1877, settled, respectively, upon certain lands belonging to the government, which being dry and arid and unproductive without irrigation, for the purpose of securing a supply of water for stock and domestic purposes, and the cultivation of their lands, went up to a natural water-course called "Little Sheep Creek," built a dam across it, and by digging ditches, and using gullies, ravines, or dry draws, as called by various witnesses, they diverted substantiaily all the waters of that stream, roughly estimated to be aboat 2,500 inches, which they divided into equal parts among themselves, and caused these waters to flow therein, using as much as they each needed, and letting the surplus flow on, and thereby created the stream known as "Sheep Creek Ditch." His evidence also goes to show that these ravines, depressions, or dry draws, as called which they used to convey the waters to their lands, were dry

draws, and in which no natural waters were accustomed to flow, but that they were caused by occasional bodies of surface water descending from the hills during times of melting snow and ice; that there is quite a number of such draws between Sheep Creek ditch and Prairie creek, only a mile or two apart, and that they are very similar to such as were used for Sheep Creek ditch; and that owing to the face of the country it is not possible for Little Sheep creek to have flowed through Sheep Creek ditch. It also tends to show.that no willows or shrubbery ever grew along its course until the diversion of the waters had been effected, and that the sod and soil through which it flowed was not such as belonged to or was found along natural water-courses, but that the effect of the diversion was to make Sheep creek a liv ing stream, cutting out by the force of its waters through sod and soil, except occasional spreads here and there, a definite channel, and discharging its waters into Prairie creek. There were also several other dry draws or ravines between Sheep Creek ditch and Prairie creek, which were only a short distance apart; but these, like those of which Sheep Creek ditch had been partly constructed, were without water or shrubbery or other characteristic of a natural water-course, or of the ac tion of water, other than was produced by the mere drainage of surface water from melting snows; showing that the ravines and draws with which Sheep Creek ditch is partly made were dry and without water, as was testified to by several witnesses, and that, it only assumed that character when, by dam and ditches connecting with dry draws or ravines, the waters of Little Sheep creek were diverted into them. The testimony establishing these facts is supported by several wit nesses, whose opportunities were such, both before and after the diversion had been effected, and the way and means by which it was accomplished, as to give great value to their testimony, especially in the absence of any contradiction-or attempt at impeachment. It was after the waters had been turned into Sheep Creek ditch, and it had begun to assume the appearance of a natural stream in running through the ravines or draws, that the principal witnesses for the plaintiff express the opinion that it was a natural and ancient water-course; but much of their testimony in regard to the size of the willows, and the character of the sod and soil through which it had cut a welldefined channel to Prairie creek, is but a corroboration of che testimony for the defendant, and hardly consistent with the theory of an ancient water-course. It was the fact that these parties, including the grantors of the defendant, who had constructed Sheep Creek ditch, and turned the waters of Little Sheep creek into it, did not have any immediate use for the full amount of water diverted for the cuitivation of their lands; that, after using such amount of it as they needed, they permitted the surplus to flow, and to create through the lands lying below a living stream, along which other persons, in course of time, settled, and used the water

amounted to 1,000 inches, and at times much more, owing to its use and the season. The court below found that the amount of water used and appropriated by the defendant and his grantors did not exceed 300 inches, varying from 50 inches to that amount, as needed for the purposes of the appropriation; but in our judgment 400 inches would be nearer the amount intended to be appropriated for the uses specified; andas between the parties to this record, but no others, this should be taken as the amount of water that the defendant is entitled to use, leav ing the surplus to flow on, according to the custom established by his grantors, to be appropriated by the settlers below. It is now claimed that the facts show that the defendant used or wasted this surplus upon his lands, to the damage and detriment of the rights of the plaintiff acquired in its flow through his land. The evidence indicates, without dissent, that the season was exceptionally dry, and that the snow in the mountains was scant, seriously affecting the source of Little Sheep creek's supply of water, and by reason thereof less water flowed down the ditch; that those above the defendant used the waters freely, as much as was necessary for the irrigation of their lands, within the purposes of their original appropriation; and that these causes combined to use the water in the ditch, leaving little or no surplus to flow on, causing the settlers below to complain, and a litigation to be threatened, which to avoid, they used less water, and permitted more to pass through the ditch, except the defendant, who continued to use the amount he claimed that was necessary for the irrigation of his lands, and to which he was entitled within the original appropriation. While there is some evidence indicating that the defendant used the water freely, and perhaps, on one or two occasions, more than was actually necessary, though this is contradicted, which, it may be admitted, was in excess of the amount he was entitled to use, if more than was actually necessary at the time, although within the original appropriation, yet it was plainly not these acts which caused the ditch and its channel to become dry during all the season, producing the grievances complained of. It was due to the more potential causes of a drought, aided by the other causes. Every one had a short crop those years, for they were years of drought, is the tenor of the evidence. So that, if the complaint was framed on this phase of the facts, no case is made upon which relief could be granted by injunction, much less when it is framed upon the grounds of riparian proprietorship of a natural water-course running through his lands from time inmemorial, which is a different matter, and governed by different rules of law. In any view, therefore, there is a failure of proofs to justify the exercise of the jurisdiction invoked, which is always applied cautious

for irrigating their lands, stock, and domestic purposes. Mr. Rowland, one of the grantors of the defendant, after stating by whom, how, and by what means the diversion was effected, says: "The owners (5) used all they each needed, and let the surplus flow on through the ditch, to be taken up by the settlers below as they needed it. This was our custom." While Mr. Rowland does not state exactly the full amount of water diverted, although one of the original parties, yet it is estimated at 2,500 inches, of wh each party was to have 500 inches, and according to which the defendant claims he was entitled to 1,000 inches by his conveyances. As the amount of water needed for irrigation, in the first years of the settlement, was necessarily small, a large surplus, estimated variously, and varying from one to two thousand inches, was permitted to flow, and create the water-course upon which the plaintiff subsequently settled. Recognizing the force of this evidence as fatal to the contention that Sheep Creek ditch is a natural and ancient watercourse, and to secure the right to the use of its waters to the extent already appropriated by him, the plaintiff, conceding that it is not a natural and ancient watercourse, claims that as the defendant and others have not appropriated for the irrigation of their lands the amount of water diverted, but permitted the surplus for several years, over the amount needed for their domestic and agricultural purposes, to flow ou and become a water-course, they have thereby fixed the amount of water necessary for their lands, (which is admitted to be 110 inches appropriated by the grantors of the defendant, to which he is entitled by his conveyances,) and that the plaintiff and others living below are entitled to appropriate its surplus, accustomed to flow through their lands. The law, as already stated, is that no one can by a prior appropriation claim or hold any more wa ter than is necessary for the purposes of his appropriation. The grantors of the defendant, however much they may have diverted, could not have lawfully appropriated any more than was necessary to irrigate their lands, and for stock and domestic purposes. That much they were entitled to use, when needed or necessary for the purposes specified, and to that extent it was a valid appropriation of the waters to a beneficial use upon the lands, and that much as an appurtenance the defendant acquired by his conveyance from them, and was entitled to use. Beyond the amount of water thereby taken his rights did not go. He could not waste it, and was only entitled to as much water, within his original appropriation, as was necessary to irrigate his lands. As the grantors of the defendant and their associates, according to the evidence, had diverted more water into Sheep Creek ditch than they needed, and therefore more than they intended to use or appropriate for irrigation, stock, and domestic purposes, they permitted the surplus to flow throughly, and only when the right to the mat

the ditch upon the lands of the defendant and others, to be taken up and used by them. How much there was of such surplus it is difficult to determine, but it

ter in question is clearly established, and an injurious interruption of such right ought to be prevented. The decree must be aflirmed, and it is so ordered.

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1. Where one holding a possessory right to public land appropriates water for the purpose of irrigating it, such water-right becomes a part of the improvements, and may be sold verbally and transferred with the possessory right.

2. Where, in an action to establish a waterright, the evidence shows that plaintiff had diverted 80 inches of water, but only used 50 inches thereof for about 15 years, she is only entitled to the amount used, as against a subsequent appropriator.

Appeal from circuit court, Baker county; JAMES A. FEE, Judge,

Suit in equity to enjoin and restrain the defendant, George Rizor, from diverting the waters of Alder creek, a natural watercourse which runs through the lands of both parties to this suit.

J. L. Rand, for appellant. M. L. Olm

sted, for respondent.

BEAN, J. This is a suit to enjoin the defendant from diverting the waters of Alder creek, a natural water-course, which runs through the lands of both plaintiff and defendant. Both parties claim by prior appropriation. The facts are these: In 1863, the lands through which Alder creek flows were unsurveyed and unoccupied government land, and the waters thereof were free and unappropriated. In the spring of that year, J. W. Cleaver and one Peters settled upon the land now owned by plaintiff, and, for the purpose of rendering it productive and useful for agricultural and horticultural purposes, entered upon the unoccupied government land a short distance above the land occupied by them, and diverted a portion of the waters of Alder creek, and by means of a ditch conveyed the same onto their land for irrigating purposes. Cleaver and Peters continued to occupy and cultivate the land, using the waters appropriated by them, until 1865, when they sold their possessory rights and improvements. From the time of the sale by them until 1881, the land improvements and water-right passed into the possession and occupancy of several different persons, each selling his rights thereto, and delivering possession to the purchaser, but no complete chain of title by deed of conveyance to either the land, ditch, or water-right appears in the record. In 1881, the property having in this manner passed into the possession of one Rowley, he filed thereon under the pre-emption law, and, after perfecting his title conveyed the land, with its appurtenances, on September 15, 1882, by deed to plaintiff. In February, 1877, defendant settled upon the land now owned by him, above the land of plaintiff, as a homestead, and, having received his patent, claims the right to the use of 50 inches of the waters of the creek, as against plaintiff, by an appropriation made by him in 1877. He claims that because the title of the several parties occupying the land from Cleaver down to Rowley was acquired by the purchase of

possessory rights merely, and not by deed, the water-right was lost and abandoned; that a valid transfer of a ditch and water-right can only be made by deed, and a verbal sale operates ipso facto as an abandonment; and that consequently his appropriation, made in 1877, was prior in time and paramount in right to that of plaintiff, which, in any view, could only date from Rowley's settlement in 1881. This is the only question necessary for us to consider. If plaintiff has connected herself by a proper title with the rights acquired by Cleaver and Peters to the waters of Alder creek, her rights are unquestionably superior to those of the defendant; for whoever purchases land from the United States after the whole or some part of the water of a natural watercourse, running through such land, has been appropriated by some one else, takes subject to the rights acquired by such prior appropriator. Kaler v. Campbell, 13 Or. 596, 1! Pac. Rep. 301; Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 674. If, how. ever, her rights only date from the settlement of Rowley in 1881, the appropriation made by defendant in 1877 gives him a superior right to the quantity actually appropriated.

It is undisputed, from the evidence, that the land owned by the plaintiff has been improved, cultivated, and farmed each year, by the occupants and owners thereof, from the time of Cleaver's settlement, in 1863, to the commencement of this suit, and the waters appropriated by Cleaver and Peters has been used through the ditch constructed by them for the necessary irrigation of the land each year. In fact, without the use of this water the land would be of comparatively little value for agricultural or horticultural purposes, and the possessory rights thereto would not have sold for the several amounts disclosed by the record. It is dry and arid land, and can only be successfully or profitably cultivated by means of proper irrigation. It had been so improved that in 1881 Rowley paid to the occupant the sum of $1,500 for his possessory rights. Each owner and occupant of the land has used and claimed to own the water-right acquired by the appropriation of Cleaver and Peters, and bas delivered the possession thereof, with the other improvements on the land, to his successor in interest, as an incident to the principal thing sold. A settler upon the public land has a right thereto as against every person except the government, and, when such settlement is made with the view of obtaining title, such right is a valuable property right, which the courts will protect and enforce. Kitcherside v. Myers, 10 Or. 21; Jackson v. Jackson, 17 Or. 110, 19 Pac. Rep. 847. The right of such a settler being property, he may sell and transfer it, so as to pass his right thereto, and, except as against the government, vest the rightful possession in the purchaser. This right being a possessory one, merely, and not lying in grant, does not require a formal deed of conveyance, in order to effect a sale or transfer thereof. The settler does not acquire a title to the land

by the act of settlement, but only the right to one upon his complying with the provisions of the law governing the sale and disposition of the public lands. His occupation and improvement, with a view to pre-emption, do not confer a vested right in the lands so occupied, but do confer a preference over others in the purchase of such lands by the bona fide settler, which will enable him to protect his possession against other individuals. He has no interest in the land which he can convey, but only in the possessory right thereto; and any mode of sale or conveyance which effects a transfer of the possession from the vendor to the vendee is sufficient to pass his possessory title.

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When such a settler appropriates water for the necessary irrigation of the land occupied by him, it becomes as much a part of his improvements as his buildings or fences, and can be sold and transferred with his possessory right in the same way. The principal subject matter of such a sale and purchase is the possessory right to the land, and the consequent preference over others in the purchase of such land from the government; and such a sale, followed by possession taken thereunder, vests the possessory right in the purchaser, except as against the government, and he succeeds to the rights of the settler to the possession of the land and improvements. The water. right being a necessary incident to the complete enjoyment of the land, the same principle which sustains a verbal sale of the possessory right to the land will also support a verbal sale of the water-right in connection therewith, so as to enable a purchaser to maintain a suit against a stranger for interfering with the same. The water, when appropriated and used for irrigation, becomes an incident to the land, and a transfer of the possessory rights thereto carries with it the water, unless expressly reserved. The general rule is that, where a party grants a thing as it is then used and enjoyed, he, by im plication, grants all those easements which the grantor can convey which are necessary to the reasonable enjoyment of the granted property, and have been and are at the time of the grant used by the owner for the benefit of the granted premises: and, if the grantor wishes to reserve any right over the easement, he must reserve it expressly. Gould, Waters, § 354; Cave v. Crafts, 53 Cal. 135. | This rule, we think, is as applicable to the transfer of possessory rights to public land as to any other species of property. Thus, if a mill is erected upon public land, and water appropriated therefor, the sale of the mill and transfer of the possessory right to the land passes the water-right to the vendee. McDonald v. River, etc., Co., 13 Cal. 220. So, the fact that the owner of the lower land acquired title through purchase of possessory rights merely, and not by deed, does not affect his title to the water-rights, as they pass as appurtenant to the land. Geddis v. Parrish, (Wash. T.) 21 Pac. Rep. 314. So, if a settler upon the public lands under the homestead law constructs a ditch for the pur

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pose of conveying water onto his land for irrigating purposes, such ditches and water-right become part of the realty, and are not severable therefrom, and are exempt from sale under execution. Faull v. Cooke, 19 Or. 455, 26 Pac. Rep. 662. The fact that the settlers on this land after it was surveyed, and prior to its passing into the possession of Rowley, may have formally relinquished their pre-emption filings, does not of itself operate as an abandonment of the water-right. This was the only means of effecting a complete transfer of their possessory right to the land, and giving their successors in interest an opportunity to acquire a title from the government. To constitute an | abandonment, there must be an intent to abandon. Dodge v. Marden, 7 Or. 456. Such intent may be inferred from the acts and declarations of the party, for it is only by the acts and declarations of persons that we infer their intentious; but in this case there is nothing in the acts and declarations of the occupants of the land, or of the owners of the water-right, indicating an intent to abandon it, but, on the con trary, their every act and declaration unmistakably evinces a clear intent not to do so. In fact, counsel for defendant did not claim that there was evidence indicating an intent to abandon, but he claimed that the verbal sale and transfer of this water-right operated, ipso facto, as an abandonment thereof, and in support of his position cited and relied on Smith v. O'Hara, 43 Cal. 371; Pom. Rip. Rights, § 89; Gould, Waters, § 234. The statements by Pomeroy and Gould are based upon the doctrine announced in Smith v. O'Hara. In that case the plaintiff claimed as purchaser from the prior appropriator of a ditch used for conveying water for mining purposes, and undertook to prove the sale by oral testimony. The court held that a ditch, being an interest in real estate and lying in grant, could only be conveyed by deed, but that doctrine has no application to the case be. fore us. In this case there was no attempt to convey the ditch separate frʊm the possessory right to the land, but only as an incident thereto, and as part of the improvements thereon. It was an appurtenant to the principal thing sold, and passed as an incident thereto. We do not at this time undertake to question the doctrine that a ditch or canal itself, used for conveying the water to a mine or elsewhere, is an interest in land that can only be transferred and conveyed as in the case of other real estate, but we deny its applicability to the facts in this case.

Having reached the conclusion, that plaintiff has succeeded to the title of Cleaver and Peters, and that the appropriation of the water of Alder creek made by them is prior in right to that of de. fendant, it only remains to ascertain the quantity of water to which plaintiff is entitled. The evidence on this question is not as clear as we would like. The amount of water diverted by Cleaver and Peters in 1863, from the best impressions we can gather from the evidence, was about 80 inches. This quantity does not

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