Hedges v. Riddle

¶1delivered the opinion of the court.

¶2The cause was reversed at the first appeal and remanded for the taking of further testimony. It now appears that plaintiff cultivates .3 of an acre in garden, a wheat field containing about 3.7 acres, and 2.6 acres in prune orchard, making a total of 6.6 acres, all of which needs to be and has been irrigated by the plaintiff. There is a small piece of land south of the wheat field, consisting of 3.4 acres, which might be irrigated, but never has been. The witness Hicks gives us definite testimony as to the measure of the land, of plaintiff’s ditch, and of the amount of water appropriated by defendants through their pipe-line. From these facts we can readily determine the amount of water which plaintiff needs and has used for irrigation. Hicks gives us a rule for the application of water as followed by the state water board, which limits the amount necessary in such a case to one-half. inch, per acre; but as stated in the case of Little Walla Walla Irr. Co. v. Finis Irr. Co., 62 Or. 348 (124 Pac. 666, 125 Pac. 270), where the controversy involved an appropriation made before these rules were established, in the use of water upon small tracts of land, only a very small part of one-half inch per acre could be carried to the land without the use of an expensive’means of conveying it, which is not justified in this case. This being very gravelly land, we think the plaintiff should be allowed two inches per acre for seven acres.

¶31. The fact that plaintiff is a riparian owner on the stream cannot avail him now. He has elected to take *199a definite quantity by appropriation, and has waived his riparian right, and his rights must be determined under his claim of prior appropriation. He cannot pursue both methods: See Brown v. Baker, 39 Or. 66 (65 Pac. 799, 66 Pac. 193), and the many cases since decided.

¶42. The amount that defendants have expended on their pipe-line can have no weight here. If they expended moneys to construct their plant, they did so at their own peril; and, if this water is necessary to supply the town of Riddle with water for domestic use, their remedy is to acquire it by condemnation.

¶5We find no error contributing to the result, and the decree must be affirmed.

¶6Affirmed. Motion to Retax Costs Denied.

¶7Denied March. 2, 1915.

¶8Motion to Retax Costs.

¶9(146 Pac. 964.)

¶10Messrs. Buchanan S Porter and Mr. Reuben W. Marsters, for the motion.

¶11Mr. Oliver P. Coshow, contra.

¶12Opinion

¶13This is a motion to retax costs., A decree in plaintiff’s favor was reversed on a former appeal herein: Hedges v. Riddle, 63 Or. 257 (127 Pac. 548). At a second trial the plaintiff again secured the decree, *200which was affirmed, and he filed a cost bill that included items of expense, amounting to $34.75, which had been incurred on the former appeal. Upon objection to these particular charges, the clerk of this court struck them out, whereupon this motion was interposed. In Wade v. Amalgamated Sugar Co., 71 Or. 75 (142 Pac. 350), it was ruled that, where a judgment was reversed, and a second trial resulted in favor of the same party, he was not entitled to costs incurred at the former trial. The conclusion there noted determines this matter.

¶14The action of our clerk, which is complained of in this motion, should be sustained, and it is so ordered.

¶15Affirmed. Motion to Retax Costs Denied.