rehearing">

On Petition nor Rehearing.

Mr. Chief Justice Moore

delivered the opinion.

2. It is contended by defendant’s counsel, in their petition for a rehearing, that the affidavit which formed the basis of this proceeding located the head of the Imbler Ditch upon the relator’s land, and that the court, over their objection, permitted testimony to be introduced tending to show that defendant prevented water from flowing into a ditch the head of which was on his own premises, and, having been found guilty of contempt upon such testimony, the judgment should be reversed because of the variance. The decree, for the violation of which the defendant was found guilty, is, so far as considered important herein, as follows:

“It is therefore considered, ordered, adjudged, and decreed that the plaintiff and respondent, A. W. Turner, has a prior right of appropriation to one hundred inches of water from ■Willow Creek, under a six-inch pressure, to be measured at the head of the ditch known as the ‘Imbler’ or ‘Fence’ ditch, from the 1st day of April to the 15th day of July in each year, and fifty inches of water, to be measured at the same point under like pressure, for the remainder of the year, and that the said defendants and appellants, J. L. Cole, G. J. Gray and B. F. Kendall, and each of them, and all persons acting through or under them, their servants, agents, and employes, be and they are hereby perpetually enjoined from making any diversion of any water from Willow Creek which will in anywise conflict with the allowance made to the respondent, A. W. Turner, as above set forth. ’ ’

The part of the affidavit adverted to applicable to the question involved is as follows:

“I, A. W. Turner, being first duly sworn, depose and say that on the 6th day of December, 1898, in the Circuit Court of the State of Oregon for Baker County, in a suit pending wherein A. W. Turner was plaintiff, and G. J. Gray and J. L. Cole and B. F. Kendall were defendants, a decree was entered by the above-entitled court, in pursuance of the mandate of the Supreme Court of the State of Oregon, wherein and whereby it was ordered and adjudged that the said A. W. Turner was the appropriator and owner of a prior right of appropriation *267of 100 inches of water from Willow Creek, by miners’ measurement, under a six-inch pressure, to be measured upon the premises of said A. W. Turner, at the head of that certain ditch Imown as the ‘ Imbler Ditch. ’ ’ ’

It is then stated that said decree is in full force, and that, at the time it was rendered, defendant was and now is the owner of certain real property situated upon Willow Creek, and also the owner of a ditch tapping that stream, and that since the decree was rendered he has, in violation thereof, intentionally diverted the water from flowing in the channel of the creek to the head of the Imbler Ditch. We think this affidavit sufficiently charges the defendant with a wilful violation of the terms of the decree, to which he was a party, and particularly specifies the manner of the infringement thereof, which consists in diverting the water from Willow Creek, and in preventing any of it from flowing in the channel of that stream to the head of the Imbler Ditch.

It is true that the relator’s affidavit states that the water is to be measured upon the premises of said A. W. Turner at the head of that certain ditch known as the “Imbler Ditch.” If the theory adopted by the relator at the trial of this proceeding be true, the head of the Imbler Ditch is not located upon his land, but upon the defendant’s premises, while the defendant’s theory is that the head of said ditch is correctly stated in said affidavit. The question involved was the identity of the ditch specified in the decree, and, when that issue was determined, the head of the Imbler Ditch would necessarily be located at the point where the ditch tapped Willow Creek, regardless of .whose land it might be situated upon. The implication in the relator’s affidavit that the head of the ditch in controversy is situated upon his premises is a circumstance tending to defeat his theory and to support that of the defendant; but we do not think such circumstance is controlling, or that the court erred in admitting testimony tending to show that the head of said ditch was on the defendant’s premises, he having been sufficiently notified of the issue involved by the statement that he had violated the provisions of the injunction *268by preventing tbe water of "Willow Creek from flowing in the channel thereof to the head of the Imbler Ditch.

3. It is insisted that the opinion handed down by this court in the ease in which the decree alleged to have been violated was given (Turner v. Cole, 31 Or. 154, 49 Pac. 971), having described the head of the Imbler Ditch as being in the place stated in the affidavit, and at the trial of this proceeding the relator, upon cross-examination, having admitted the same fact, an error was committed by the trial court in concluding that the head of said ditch was located at any other place than as so stated and proven; and that notwithstanding the defendant relied upon the statement contained in said opinion, and observed the order of the court in respect thereto, he was adjudged guilty of contempt under a modification of the language of the opinion, which change was effectuated after the commission of the acts complained of, in the absence of a criminal intent, and without notice that said opinion would be modified. In the opinion, to which attention is called, the statement is made that Turner, the relator, possessed two ditches that tapped Willow Creek in the southeast quarter of section 10, township 16 south, range 43 east, in Malheur County.

The judgnlent or decree is the declaration of the law applicable to the facts upon the issue involved, and, when the court rendering it has jurisdiction of the subject-matter and of the parties, it is binding upon them until modified or set aside in the manner prescribed for that purpose. An opinion is a written statement by the court of its reasons for the conclusion reached from an examination of the law and of the facts in controversy: Houston v. Williams, 13 Cal. 24 (73 Am. Dec. 565). The opinion forms no part of the judgment, though it may with propriety be consulted to explain an ambiguity therein: Keane v. Fisher, 10 La. Ann. 261. An examination of the decree in the case at bar shows that the Imbler Ditch is also called the “Fence” ditch. This designation in favor of the relator’s understanding of the names of these ditches would seem to render the decree ambiguous, thereby permit*269ting an examination of the opinion with a view to resolving the doubt, if possible, but, when this cannot be done by a resort to that means, the judgment or decree, when conflicting with the opinion, must prevail, as that is the last expression of the court upon the matter. It may be that the decree improperly specified the ditch in controversy, but, even if that be so, it is binding upon the court and the parties thereto until modified, so that the mere inaccuracy of statement in the opinion furnishes no justification for the intentional diversion of the water of Willow Creek, and thus preventing its flow to the head of the Imbler Ditch, which a re-examination of the testimony convinces us has been done by defendant in violation of such decree.

The attention of the relator, A. W. Turner, having been called to the time he sold a certain farm, he was asked, on cross-examination, “Before that, the Imbler Ditch, the head of it, was about 300 yards below the Gray line ? ” to which he replied, “Yes, sir; the Fence Ditch. Q. I mean the ditch on the south side of Willow Creek. Before 1886 or 1887, where was the head of the Imbler Ditch? A. It was up in Mr. Gray’s field. ’ ’ Further, in his cross-examination, the attention of the witness having been attracted to the testimony which he had given in the suit resulting in the decree alleged to have been violated, he was asked: “ ‘Before that, where was the head of the Imbler ditch?’ and you answered, ‘About three or four hundred yards below Gray’s line.’ Did you say that? to which he replied: “If I did, I understood it to be the Price Ditch; not the east ditch as now. One heads above, the other below. That is the one I had reference to when the question was asked, on the south side of the creek. ’ ’ This witness having been recalled for further cross-examination, the following question was asked him: “You were a witness in the ease in which you were plaintiff, and Gray and others were defendants, in which this decree was rendered?” to which he answered: “Yes, sir. Q. Do you remember this Fence Ditch on the south side of the creek? A. That’s what it has always been called. ’ ’ The testimony of the relator would seem to indi*270cate that he understood the ditch constructed on the south side of the creek to be the Price or Fence Ditch, and the one on the north side, the head of which was on Gray’s land, to be the Imbler ditch. Though such was the relator’s understanding in respect to the names of these ditches, other witnesses designated the Imbler Ditch as the “Fence” Ditch, and it is certain that both these ditches were used as a means of turning stock. We do not think a careful perusal of Turner’s testimony would lead to the conclusion that he ever admitted that the head of the Imbler'Ditch was located on his land.

Believing, as we do, that the preponderance of the testimony shows that defendant wilfully violated the terms of the decree, the petition for rehearing is denied.

Rehearing Denied.

Citation profile

Relationships

How this case has been treated — in progress