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was intoxicated to that extent that he was BURFORD, C. J. This action involves the incapable of making a legal contract this question of priority of right to divert water court will take the finding of the trial court, from the Cimarron river for irrigation purit being reasonably supported by the evidence. poses. Oklahoma has not so far been creulitThe whole transaction has the earmarks of a ed to the arid belt, and agriculture has been sharp deal and a combination of effort on the successfully conducted by the aid of nuture's part of Gaffney and Jelsma to take advantage supply of moisture; but in some localities, of Cline's intoxicated condition; and it is in the higher altitudes pertaining to the exjust that they be denied the fruits of such treme western counties of the territory, irriconduct.

gation upon a small scale has been profitably The judgment of the lower court is hereby resorted to, and an increasing public interest affirmed, at the cost of the appellant. All of is being developed in not only the expediency, the Justices concurring, except BURFORD, but the necessity, for extensive irrigation of C. J., who presided at the trial below, not agricultural and meadow lands in the fersitting, and IRWIN, J., absent.

tile valleys of western Oklahoma. In the year 1897 our Legislature passed an irrigation

act. 1 Wilson's Rev. & Ann. St. 1903, p. 814, (19 Okl. 83)

C. 44, $$ 3282-3304. This statute was repealGATES v. SETTLERS' MILLING, CANAL ed in 1905, and a more comprehensive law & RESERVOIR CO. et al.

substituted, which is still in force. Laws (Supreme Court of Oklahoma. Sept. 4, 1907.)


1905, p. 274, c. 21, art. 1. It is conceded that

neither of the parties to this litigation pro1. WATERS AND WATER COURSES-IRRIGATION - PRIOR RIGHT.

ceeded under either of these statutes; but The right to the use of water from a pub- both, as we understand the case, base their lic stream for irrigation purposes depends upon the construction of appropriate ditches, the

claims upon the general rule of law applicable conducting of water through such ditches to

to such cases. Yet, if any rights were acthe place of intended application, and the ap- quired and became vested under the statute plication of such water to beneficial uses, all of 1897, the statutory provisions must control within a reasonable time; and he has the best

as to such rights.
right who is first in time.

It appears from the record that the plain-
Where the question of priority of right to

tiff in error, Gates, commenced his suit in the divert water from a running stream for the

district court of Woodward county against purposes of irrigation, and the question as to the Settlers' Milling, Canal & Reservoir Comwhether either of the claimants had used reasonable diligence in prosecuting his work and

pany on November 6, 1903, to enjoin the dein making application to beneficial uses of the

fendants from diverting water from the Ciwater, are controverted questions of fact, de- marron river, on the ground that such diverpendent upon the weight of contradictory testi

sion was a material interference with a prior inony and the credibility of witnesses, this court will not disturb the finding of the trial

right acquired by him to the use of the wacourt, if there is competent evidence reasonably

ter for irrigation purposes. Gates bases his tending to support the finding and judgment. claim to priority upon an appropriation made

[Ed. Notc.-For cases in point, see Cent. Dig. | by J. H. Williamson, through a ditch convol. 3, Appeal and Error, $$ 3929-3931.)

structed in the early part of the year 1901, 3. WATERS AND WATER COURSES -- PRIORITY OF WATER RIGHTS-DISTRIBUTIOX.

which was about three miles in length and Where there are conflicting claims for pri

took the water from the river about two ority in the use of water rights for irrigation

miles below the point where the defendant's purposes, the court, in an application for in- ditch connected with the river. Williamson junction, may make equitable distribution of

sold his land and ditch and his water rights the supply of water according to the priority of the claimants and the quantity each has hy his

to Gates in July, 1.902. A portion of the flow labor and diligence acquired the right to divert.

of water in the Cimarron river was actually 4. APPEAL – REVIEW - CONFLICTING Evi- appropriated to beneficial uses for agriculturDENCE.

al purposes during the years 1901 and 1902, Where a question depends upon the weight

The irrigating ditch used by the defendants, of the evidence for its deterinination, and the evidence is conflicting, or of a vague and un

which is made the subject-matter of this concertain character, the appellate court will not troversy, was commenced

troversy, was commenced about the year review such question.

1902, and has its headgate above the point (Syllabus by the Court.)

where the plaintiff procures his water supply.

But it is contended that this ditch is but a Error from District Court, Woodward

continuation and change of work begun in County ; before Justice John L. Pancoast.

1896 and continuously carried on until the Action by C. W. Gates against the Settlers' Milling, Canal & Reservoir Company and oth

time of the bringing of this suit. The SetJudgment for defendants, and plaintiff

tlers' Milling, Canal & Reservoir Company

was incorporated under the laws of the terbrings error. Aflirmed.

ritory of Oklahoma on June 4, 1895, for the Stanley & Stanley, D. P. Marum, and Stan- purpose, as shown by its articles of incorporaley, Vermilion & Evans, for plaintiff in error. tion, of "constructing a ditch to convey water F. C. Price and Charles Swindall, for defend- to lands to be used for milling purposes, or ants in error.

for the purpose of irrigation of farming

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lands.” The stockholders and officers of this | Instead of rebuilding the flume, the ditcb

, company were the farmers and landowners was extended up the west side of Horse whose lands were to be benefited by the ir- creek one-fourth of a mile, to a point where rigation project, and the capital stock paid the ditch and bed of the creek were on the in consisted almost entirely of the work done same grade, and the water was conducteil by the individual stockholders in constructing across the bed of the stream, by throwing the ditch, dam, flumes, and other necessary up a sand barrier, and back down the east work in repairing the same. The year the side of the stream, through a new ditch, uncompany was incorporated it did some work til it again connected with the old ditch, and in repairing and strengthening a dam in the was applied during the season to crops east Cimarron river which had been partially con- of Horse creek, consisting of 60 acres of structed anil used by Mr. Mophet, one of kaffir and 40 acres of wheat. The ditch and the stockhollers and the president of the com- lerees across Horse creek were washed out pany. About 150 loads of stone were hauled and repaired a number of times during the and dumped into the river bed to strengthen season of 1898. In 1899 the levee across the old dam. The purpose of the company Horse creek was rebuilt, and the water was was to divert the water from this point and applied to 70 acres of land, some of which make use of the old Mophet ditch, which it was meadow. A rise in the river wrecked! seems the corporation succeeded to by com- one end of the dam, and it was repaired by mon consent. In the spring of 1896 100 loads putting in rock and piling. In 1900 the more of stone were put in to support the old ditch was completed to Red Bluff, making dam. Later on in the year a break occurred 314 miles of ditch built by the defendant in the dam, and piling was driven in and company, and 130 acres prepared for crop, supported by more stone put in for that pur- which it was the purpose to irrigate, and pose. The dam was completed across the water was applied to 100 acres. On April 8. river, 225 feet in length. Owing to frequent 1900, an unprecedented rise in the river rises in the river that year, heavy timbers caused it to cut a new channel, running. and sod were used to strengthen and repair straight across and cutting off the Horseshoe the work, which was completed at an esti

bend. and leaving the diversion improvemated cost of $2,000. This improvement was ments of the Settlers' Company a mile south a distance of 12 miles from a railway sta- of the new channel, and completely cutting tion, in a sparsely settled country, and 40 off its water supply. An attempt was made miles from where some of the timbers and by the company to turn the river back into piling had to be obtained and hauled. The its old channel by damming the cut-off, and company also caused a survey to be made about 400 loads of stone, sand, brush, and from the old Mophet headgate, along the old other obstructions were placed in the chanMophet ditch, in an easterly course a short nels, without beneficial results. It was then distance, and thence continuing east to Horse found necessary to go farther up the river, creek, where it was necessary to construct a

and divert the water at a new point, and conflume to carry the water across this creek. struct a new ditch to a connection with the The old ditch was cleaned out, and a new por- old ditch at the old headgate; and this was tion constructed and completed, a distance of

done and the water turned into it. It was one mile, from the old headgate to Horse then discovered that the channel of the river creek. In the spring of 1897 work was begun had cut below the bed of the ditch, and the upon the flume, which was constructed by water would not rise high enough to flow driving three rows of cedar piling into the through the old ditch. The next year (1901) ground from 8 to 11 feet, upon which was the extension ditch was deepened and the built of lumber an aqueduct 100 feet long and water carried to the old headgate, across 16 inches deep to carry the water over the

Horse creek by the sand levee, and applied creek. The ditch was extended another half to a small area of land. This raised the mile beyond this flume, and a full head of sheet water so as to produce subirrigation water turned in and conducted through the for 130 acres of crops and 70 acres of grass flume and into the laterals, carrying the wa

land. The river channel at the cut-off con ter to the farms of T. C. Mophet and G. C. tinued to deepen, and the sand dam washed Mophet, and by them applied to about 40 out, and the ditch filled with sand for sevacres of land and crops. The company also

eral rods before the next season, and after in 1897 applied to the Secretary of the Inte- repeated efforts to overcome the difficulties rior for reservoir and right of way privi- it was determined to abandon this scheme leges over the public lands, which applica- and adopt a new point of diversion and tion was granted and confirmed. It also scheme of distribution. In the spring of gave notice, under the provisions of the stat- 1902 the company selected a new point of ute of 1897. of its intention to appropriate diversion, where Horse creek empties into Water, which notice was recorded in the office the Cimarron, and constructed a ditch from of the register of deeds for Beaver county. this point to a connection with the old ditch During the year 1898 water was flowing

between there and Red Bluff, and paralleled through this ditch and flume until April or it into the valley designed to be irrigated. May, when a flood in Horse creek swept the This new route reached practically the same flume away and carried it down the river. territory to be irrigated, ran in the old chan

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nel a portion of the way, and followed the priority. There seems to be no serious difold right of way for some distance. The ficulty in determining the law on these ques. work made good progress, and at the time tions; but the difficulty, if any, lies in the of the trial about eight miles of ditch and application of the law to the facts. The law laterals were completed, and several hun- requires that there must be reasonable dilidred acres of land were receiving water. gence by one intending to appropriate water This last improvement is the one attacked from a stream, both in the prosecution of by plaintiff's petition. At the time this the improvements necessary to conduct the new route was adopted and the new work water to the place of use and in the apdone the plaintiff had appropriated a por- plication of the water to beneficial uses. tion of the flow of the river for his uses, and Moss v. Rose, 27 Or. 395, 41 Pac. 666, 50 the priority of the contesting claimants is Am. St. Rep. 713; Arnold r. Passavant, 19 the sole question for determination.

Mont. 572, 49 Pac. 400; Conaut v. Jones, 3 The cause was tried to the court without Idaho, 000, 32 Pac. 230; Senior v. Antlerson, the intervention of a jury, and a decree en- 115 Cal. 46, 47 l'ac. 4.31; Elliot v. Whittered making an equitable distribution of more, 23 Utah, 312, 65 Pac. 73, 90 Am. St. the water according to the amount that each Rep. 700; IIall v. Blackman, 8 Idaho, 272. had actually appropriated for beneficial uses, 68 Pac. 21; Gould on Waters, 88 226-239; as shown by the evidence and as found by Long on Irrigation, § 17; Ft. Morgan Land the court, at the time the suit was instituted. Co. v. South Platte Ditch Co., 18 Colo. 1, 30 The court made a general finding upon Pac. 1032, 36 Am. St. Rep. 239; Becker V. which the decree was based. It is contended : Marble Creek Co., 15 Utah, 22.7, 49 Pac. 893; that the court found certain facts specially, · Kinney on Irrigation, § 164; Union Mill & and we are asked to apply the law to these : Mining Co. v. Dangberg (C. C.) 81 Fred. 75. findings. A close inspection of the record · And a failure to use due diligence will be fails to disclose that any request was ever treated as an abandonment as against a submade by either party for a special finding of sequent appropriator whose right has atfact, and in the absence of such request the tached pending the completion of the first finding of the court, however full and com- appropriator's right. plete, amounts to no more than a general But both questions of fact contended for finding. 8 Enc. Pl. & Pr. 933-937; Couner et by plaintiff in error were determined agaiust al. v. Town of Marion, 112 Ind. 517, 14 N. him by the trial court. There was a large E. 488; Caress v. Foster, 62 Ind. 1-15; Bake number of witnesses examined, and some of v. Smiley, 84 Ind. 212. Nor will the incor- the testimony is of a vague and uncertain poration of the oral opinion of the court in- character, while some is contradictory; but to the case-made give it any special signif- there is competent evidence reasonably tendicauce, and this court will only look to the ing to support the finding and judgment of record as embraced in the entry upon the the court. Practically all the evidence injournal. This question was specifically de- troduced was upon the question of the work cided in Guss v. Nelson, 14 Okl. 296, 78 Pac. done each year by the defendant Settlers' 172.

Company and its predecessors in their efforts The ditch of the plaintiff was begun in to successfully conduct the water from the January, 1901, and carried on to completion Cimarron river through the various channels in May, 1901, when the water was conducted and flumes constructed across Horse (reek, through the ditches and water actually ap- and the number of acres of agricultural land plied to the irrigation of cultivated lands. it was applied to each year, covering a period It seems the settled law in the states where of seven or eight years. It appeared from the irrigation problems have been dealt with testimony of these witnesses that the Cimthat, in order to acquire a vested right in arron river was a sandy, treacherous stream, the use of water for such purposes from the in which it was difficult to construct a dam public streams, three things must concur: or barrier which would serve to turn the There must be the construction of ditches water into the irrigation ditches; that in the or channels for carrying the water; the spring of each year the rises in the river water must be diverted into the artificial would fill the ditches with sand and clechannels, and carried through them to the stroy the dams, flumes, and other improveplace to be used; and it must be actually ap- ments; that the timber, lumber, and mate

; plied to beneficial uses, and he has the best rials for piling, dams, and flumes had to be right who is first in time. The plaintiff in transported with teams long distances; and error contends, first, that the defendant's that the work had to be done by farmers present places of diversion and location of and settlers, who could only give part of its ditch is not a continuation of the former : their time to this work. It was also shown Works, and that its right of appropriation that the river changed its channel and left must be contined to the time of the con- the diversion works a mile or more from the struction of its last diversion works and ap- new channel, efl'ectually cutting off the suppropriation; and, secondly, that, if the litt ply of water and making it necessary to work done is a continuation of the former survey and construct another connection with efforts, the work was not married on with ; the river at a new point of diversion ; such diligence is to Warrant its claim of and each year the company or its members

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were making repairs on the old, or construct- land, and each is in possession of a portion ing new, works to enable them to utilize the thereof, the district court cannot, under the rules water supply. Reasonable diligence was re

of equity jurisdiction, by mandatory injunc

tion take the land in the possession of one of quired of them. As to what constitutes rea- the contestants and give it to ide other. sonable diliyence must be governed by the 3. SAJE - Motiox TO DISSOLVE - RULING – circumstances of each particular case, and MODIFICATION. necessarily varies with each particular case.

All orders made by a district court or a

judge thereof, on a hearing for a temporary inIt is a question of fact, and must be deter

junction or on a motion to dissolve the same, mined from all the evidence in the case. in so far as they affect the subject in controThe trial court heard this evidence and versy, are only temporary, and may be modified found, for the defendant company, that it

in the final judgment, giving to the respective

parties that order or judgment which the rules was the prior appropriator of the water to

of equity require. the amount and extent it had actually ap- 1. Save. plied to benefiial uses at the time the Where two persons are contesting in the plaintiff male his appropriation, and care and one obtains by mandatory injunction land


land department for a tract of government land, to the plaintiff the right, after this quantity


which was in the possession of the other, and was taken by the defendant, to take a plants the same to corn, and, before the corn is amount equl to the quantity beneficially ap- į harvested, the judge of the district court displied by it, after which the defendant's solves the temporary injunction and orders the right woull again attach to any excess. We

crop divided, this court will not reverse such or

der dividing such crop, unless, from the evidence, cannot disturb this action of the trial court. it can be said that the trial judge exceeded his It has become the settled rule of this court authority. The order so dividing the crop on that the finding of a court upon the facts

the motion to dissolve the hearing, is not a final

judgment, and the rights of the parties to the will be treated the same as the verdict of a

corn may be litigated on the final trial, each bejury, and, where there is competent evidence ing accountable for that portion of the crop reasonably tending to support the verdict or

which he received. On the final hearing, all of

the issues involved in the case may be litigated, finding this court will not weigh the evi

and judgment rendered declaring the rights of dence or attempt to determine the prepond- the respective parties in relation thereto. erance, but will affirm the action of the

(Ed. Note.-For cases in point, see Cent. Dig. trial court.

vol. 3. Appeal and Error, $ 3818; vol. 27, InThere are other questions argued in the junction, $ 311.] briefs. but each of them depends upon the (Syllabus by the Court.) weight of the evidence, and we cannot re

Appeal from District Court, Noble County ; view them.

before Justice John H. Burford. The judgment of the district court of

Action by Morris Brown against Laura Woodward county is affirmed, at the costs of

Donnelly. Judgment for defendant,

defendant, and the plaintift in error. All the Justices con

plaintiff appeals. Affirmed. cur, except PANCOAST, J., who tried the case below, not sitting, and IRWIN, J., ab.

H. B. Martin, for appellant. Dale & Bierer sent.

and W. J. Boles, for appellee.

(19 Okl. 296)

BURWELL, J. This is an action in the BROWN v. DONNELLY.

nature of mandatory injunction between two

homestead claimants. On the preliminary (Supreme Court of Oklahoma. Sept. 5, 1907.)

hearing the court found that the plaintiff, 1. INJUNCTION-DISSOLUTION AT CHAMBERSMOTION BY DEFENDANT-REVIEW.

Morris Brown, was in possession of 5 acres A district judge at chambers (proper notice

of the N. E. 14 of section 22, township 23 N., having been given of the time and place of hear- of range 1 W. of the Indian meridian, in ing) has power to dissolve a temporary injunc

Yoble county, territory of Oklahoma, and tion, even though it was granted upon a hearing at which both parties were present. The statute

that this 5 acres was in substantially square of Oklahoma, which provides that, where a forin and located in the southeastern portion temporary injunction is granted without notice of the claim, adjoining the eastern boundary to the defendant, he may upon notice apply to

thereof, and immediately north of the creek, have the same dissolved, confers upon the defendant the right to be heard by the court or

and that the plaintiff was entitled to the posjulge upon such motion, and is not intended to session and control of the entire north 80 prohibit the court or judge, in the exercise of

acres of the land, except any part which discretionary powers, from hearing such a motion, where the temporary injunction was grant

might be occupied by the residence of the de. ed upon notice in the first instance. This court

fendant and the improvements immediately will not reverse an order made by the judge of surrounding the same, and about 5 acres a district court at chambers on account of error which the defendant then had planted to in adinitting or excluding evidence on a motion to dissolve a temporary injunction, unless sich

(oru. The court then made an order giving error affects the substantial rights of the party the plaintiff', Brown, possession of the north appealing.

80 acres of the quarter sertion, exrept any El. Note.-For cases in point, see Cent. Dig. part thereof which might be occupied by the vol. 29, Judices, § 125 ; vol. 3. Appeal and Er

residence of the defendant ind her improveror, $ 4063.)

ments immediately surrounding the same. 2. SAME-JURISDICTION. Where two persons are contesting in the

The order also provided that the plaintiff land department over a tract of government should not have possession of 5 acres which


the defendant had planted to corn until No- having granted the temporary injunction upvember 1, 1899. The defendant was then en- on notice, the judge of the court could not joined from interfering with the plaintiff in dissolve it at chambers. In support of this the occupancy of the land, the possession of contention we are cited to section 9 of the which was given him by the order of the organic act of the territory (Wilson's Rev. & court. The order contained other provisions | Ann. St. 1933, p. 75), which confers the judiregarding the use of timber, the privilege of cial power of the territory upon the Supreme watering stock, etc. This order was made by Court, district courts, and other courts, and the court on July 22, 1899. On July 31, 190.), then provides that the said Supreme and dissix years after the temporary injunction had trict courts, and the respective judges therebeen granted, the defendant filed a motion of, shall and may grant writs of mandamus to dissolve the same. The motion came on and habeas corpus in all cases authorized by for hearing before IIon. John H. Burford, law. Now it is said that, as the organic act Chief Justice, sitting at chambers as district confers power on the judges of the district judge at Perry, Okl., in the absence from the courts to grant writs of mandamus and hadistrict of the regular presiding judge. On beas corpus, by implication power to grant this hearing the temporary injunction was temporary injunctions and to vacate the same dissolved, and it was also ordered that the when granted by the court was withheld. defendant be placed back in possession of the If this section of the organic act were all of land taken from her by the temporary in- the law upon the subject, there would be junction. The plaintiff appeals to this court. some justification for the position; but there

The order made by the trial court, dispos- are other portions of the organic act which sessing the defendant and enjoining her from must be considered. The Supreme and disinterfering with the plaintiff in his occupancy | trict courts by this same organic act are vestof the land so taken away from her, was ined with chancery as well as common-law juexcess of its authority (Black v. Jackson, 177 risdiction and authority to redress all wrongs U. S. 319, 20 Sup. Ct. 648, 44 L. Ed. 801), committed against the Constitution or laws and it was just and equitable that the defend- of the United States or of the territory afant be restored to the possession of the land fecting persons or property. And then (secwhich had been taken from her and given to tion 11 of the act) part 2 of the law of Nethe plaintiff. It was the duty of the judge braska, entitled "Code of Civil Procedure," as to give back to the defendant that which the far as locally applicable, was put in force in court had erroneously taken away from her Oklahoma until after the adjournment of the in this same action. The contention of the first session of the Legislative Assembly of plaintiff that the trial judge, in dissolving the territory. Attention is directed to certain the temporary injunction, entered a final provisions of these laws thus put in force. judgment, is without merit. The only order Section 252, part 2, Code of Civil Procedure inade by the trial judge that was in any way of Nebraska, provides: "The injunction may final in its character was the order regarding be granted at the time of commencing the acthe division of the growing crops. The plain- tion, or at any time afterwards before judg. tiff had raised a crop of corn on land that the ment, by the Supreme Court or any judge court had erroneously taken from the de- thereof, the district court or any judge therefendant and given to him. The defendant of, upon it appearing satisfactorily to the had been deprived of the benefits of the land, court or judge, by affidavit of the plaintiff or and the trial judge simply said that the plain- his agent, that the plaintiff is entitled theretiff should be treated as a tenant and the to.” Then section 203 provides how a teindefendant as a landlord as to such crop, the porary injunction may be dissolved: “Secplaintiff taking two-thirds, and that he should tion 263. If the injunction be granted withdeliver to the defendant one-third.


out notice, the defendant, at any time before plaintiff cannot complain of this. The court trial, may apply, upon notice, to the court in · might (and still keep within its lawful pow- which the action is brought, or any judge

ers) have been less considerate of his inter- thereof, to vacate or modify the same. The ests. In 22 Cyc. p. 1001, it is said: “The application may be made upon the petition dissolution of a preliminary injunction mere- and affidavits upon which the injunction is ly puts the parties in the same position in granted, or upon aflidavits on the part of the which they were prior to its issuance." And party enjoined, with or without answer. The again, on page 1000 of the same book, the order of the judge allowing, dissolving or author says: “On dissolving an injunction, modifying an injunction shall be returned to affirmative relief cannot ordinarily be grant- the office of the clerk of the court in which ed to a defendant, in the absence of a cross- the action is brought and recorded and obeybill asking it, although, where the injunction ed, as if made by the court." When Congress has taken property from the defenılant, the put in force these two sections of the Ne order should grant restitution thereof.” The braska laws, it clearly recognized the right trial judge followed this well-established rule of a judge of the district court to dissolve a as near as he possibly could under the cir- temporary injunction, whether granted by (umstances.

the court or judge. Section 4426 of Wilson's It is next insisted that, the district court Revised & Annotated Statutes of Oklahoma

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