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39 Or. 66

Brown v. Baker

Oregon Supreme Court

Decided July 15, 1901

Oregon Supreme Court · decided 1901-07-15

<p>Waters—Point of Diversion not a Test of Priority.</p> <p>1. Neither the priority nor validity of an appropriation of water is determined by the point of diversion, hence it is immaterial whether the ditch begins on public or private land.</p> <p>Water Right of Original Riparian Proprietor.</p> <p>2. The first settler upon public land through which flows a stream may either appropriate the water for some beneficial purpose, or insist that the stream shall flow in its natural channel without diminution, except as its waters may be used by upper riparian owners for domestic and irrigation purposes.</p> <p>Riparian Ownership—Appropriation—Departure. *</p> <p>3. The right to take and apply appropriated water to a beneficial use is incompatible with the right of riparian proprietorship; and there is a departure between a complaint alleging a right to a given quantity of water from a stream by appropriation, and a reply claiming a right to the same water by riparian proprietorship.</p> <p>Pleading—Motion to Strike Out—Statutes.</p> <p>4. - Under Hill’s Ann. Laws, g 79, providing that “sham, frivolous, and irrelevant replies may be stricken out” on motion, the entire reply must be moved against; the statute does not contemplate a motion to strike out a part of a reply, and such motions should be overruled.</p> <p>Pleading—Demurrer to Answer—Statutes.</p> <p>5. Under Hill’s Ann. Laws, g 79, providing that the defendant may demur to any new matter contained in the reply, when such matter is not a sufficient reply to the facts stated in the answer, a demurrer challenging the entire reply for the insufficiency of new matter contained therein was properly overruled, and a separate demurrer to the new matter because it did not state a cause of suit was also properly overruled.</p> <p>Sufficiency of Technical Objections—Waiver.</p> <p>6. Objections made or advantages claimed upon purely technical grounds must always be accompanied by specific statements of the reasons on which they are based: State ex ret. v. Estes, 34 Or. 196, applied.</p> <p>Diversion—Application of Act of Congress.</p> <p>7. A water appropriation for irrigation need not be made in accordance with any local custom or law, as referred to in the act of congress of July 26, 1866, since that act referred only to water appropriations for mining.</p> <p>Waters—Rights of Persons not Parties.</p> <p>8. Where, in a suit to determine the right to the use of a water supply, it appeared that parties other than the plaintiffs and defendants were entitled to prior use of the water, the court properly refused to award defendants the use of all the water in excess of plaintiff’s allowance.</p>

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1901-07-15

How this case has been cited

Cited by 25 later decisions — most recently November 1934 · most notably Hough v. Porter (1909), Re Determination of Water Rights of Hood River. (1923)

3 federal appellate · 20 state decisions

1201901191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Decided. 30 September, 1901.

¶2On Motion for Rehearing.

Mr. Justice Moore

¶3delivered the opinion.

¶48. A petition for a rehearing of this cause having been filed, it is contended therein that an error was committed in not awarding to the defendants the excess of water flowing in Willow Creek, after plaintiffs’ appropriation therefrom had been supplied, and hence the decree of the trial court should have been modified, and not affirmed. The decree complained of gives to the plaintiffs one hundred and ninety-five inches of the water of said creek prior to July 15 of each year, and one hundred and thirty inches thereafter, and enjoins the defendants from interfering with the flow of the water therein to that extent. The transcript shows that, except in the dry season, more water flows in the channel of the creek than is necessary for plaintiffs’ use. There is testimony, however, to the effect that several other appropriately acquired the right to use the water of that creek, who are not parties to this *76suit, and can not, therefore, be prejudiced by the decree herein, notwithstanding which the court below inferentially, at least, gave to the defendants the use of the water flowing in the creek after plaintiffs’ appropriation was supplied. The defendants’ rights are necessarily subordinate to those of prior appropriators, and, inasmuch as the court is not at liberty to determine the question of priority between appropriators not parties and the defendants, the latter are not entitled to an affirmative decree settling their rights, and hence the petition must be denied

¶5Rehearing Denied.

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