who were appropriating water from the same creek, to irrigate not to exceed two hundred acres of land. Since that time the people of Scipio had improved the channel of the creek, and, by ditching, have brought water from five springs which did not feed Maple Grove creek, so that now they have water for 2,400 acres, and irrigate that much. From this time the number of families at Scipio has increased; new settlers were admitted and allowed to take the water. Whilst new settlers were thus allowed to appropriate these waters, the defendant (respondent) was appropriating the water above them at his ranch. This yearly admission of new settlers into Scipio, and their appropriation of the waters, would seem to make it clear that there was no scarcity of water. If new settlers were thus allowed, without objection, to appropriate the water below respondent, we can see no reason why he could not have the same right. Water is something that the appellants could not control in any other way than by appropriation. They could not go and dig ditches and bring water down, and let it run to waste. If they failed to appropriate it any stranger could appropriate it, and it was not necessary that such stranger should be a member of the irrigating company, nor could such company injure or trample upon his rights. This is a free country, and the lands are open to all, and the appropriation of the water is open to all, and the legislature can not pass any law that will put it into the power of an irrigating company to control and manage the waters of any part of the Territory, regardless of the rights of parties. Nor will the court allow irrigating companies to become engines of oppression. Taking all of the evidence in this case together, we think that the court below was justified in its findings and conclusions of law.

The judgment is affirmed with costs.

HUNTER, C. J., and EMERSON, J., concurred.

COFFMAN, Respondent, v. ROBBINS, Appellant.

(8 Oregon, 278. Supreme Court, 1880.)

Rights of lower proprietor. Each riparian proprietor has the right to have the water of a stream running in a defined channel continue so to flow, except so far as the same may be appropriated for domestic use, stock, and reasonable irrigation.

'Parol division of water enforced. Where rip urian proprietors have divided the water of a stream by mutual consent, and each party has constructed ditches and enj yed the water for years under such parol agree ment, it is an agreement which will be enforced in equity and each party limited to his agreed share.

2 Purchaser takes notice of ditches. A party purchasing land with water thereon distributed by ditches, will be presumed to have purchased with knowledge of how the water was divided.

* Costs divided, neither party being without blame.

Appeal from Umatilla County.

This is a suit by the respondent to enjoin the appellant from diverting any part of a certain stream of water from respondent's premises, and from preventing any more than one third of such flowing upon the respondent's premises at the southeast corner of his farm, and for damages.

The respondent alleges that two springs rise on the lands of appellant, the waters of which unite and form a stream which runs through the lands of Daniel Simmons to a point distant about one hundred yards south of the north boundary of Simmons' farm, at which point the waters divide and form two separate channels, both of which channels run onto the premises of the appellant, Robbins, in the said northwest quarter of section six, near the southwest corner of said land, and from there, when unmolested, passed onto the northeast quarter of section one, of respondent's land, in several different channels, one of which channels passed onto said land at a distance of about two rods from the southeast corner of his farm, which channel carried about one quarter of the water running from said springs. The second and principal channel flowing from said springs passed onto respondent's land at a distance of about twenty-six rods from his southeast cor1420 Mining Co. v. Bullion Co., 3 Saw. 634; Post PATENT.

2 Lawrence's App., 7 M. R. 542; Highland Co. v. Mumford, 2. M. R. 3. Irwin v. Davidson, 7. M. R. 237.

ner, which channel carried about one half of the water flowing from said springs, and two smaller channels formed by the waters of said springs passed onto his land near the center of his east line, which said two last mentioned channels carried about one quarter of the water flowing from said springs: and that all the water flowing from said springs passed onto respondent's land in said four channels, and from there flowed in a northerly direction in several different channels, until they reached the west half of his home farm, where they again united and formed one main channel, which passed off from his said home farm on the west side thereof, from whence it ran onto some railroad land which is in the possession of respondent, and from thence to some land owned by one James M. Leezer. The said waters, before any ditches were dug, caused about sixty acres of respondent's land and about forty acres of appellant's land to be swampy, and to be grown over with tules.

That during the year 1864, two ditches were cut, distant about five feet apart in a north and south direction, on the line dividing the home farm of respondent from the northwest quarter section six, of appellant, which said last described land was then the property of one John McCoy, and that a wall of sod and dirt was built between said ditches, said wall being about five feet thick at the bottom, about four and a half feet high, and running up tapering to about the width of two feet at the top, and that said ditches were cut and wall erected for the purpose of forming a fence between the premises of respondent and the said John McCoy. That said wall prevented the water from said springs from flowing onto respondent's land in any of its natural channels, but that by mutual consent and agreement between himself and John McCoy, and other persons who afterward owned said land adjoining on the east, he had the privilege of bringing all the water that he desired to make use of, onto his premises, through a ditch which runs onto his land at his southeast corner, and which ditch extended in an east direction from said southeast corner between the lands of appellant and Daniel Simmons.

The appellant acquired title to the land adjoining respondent on the east in 1873, and that at intervals since

said time he has diverted about one half of the water flowing from said springs away from the lands of the respondent, and that said waters so diverted were never allowed to flow onto respondent's home farm, but passed around the same on other lands adjoining thereto, and that a large portion of said. waters were flowed by appellant into a lane through which a country road had been located, and that respondent never consented to said diversion, but frequently objected thereto.

That in February, 1876, appellant diverted all the water flowing from said springs away from respondent's southeast corner, by means of ditches which he dug for that purpose, and by deepening ditches which had already been dug, and caused it to flow into the most northerly of the channels formed by the spring branch, from whence it flowed onto respondent's land through an aperture in the wall, between the lands of respondent and appellant, which had been caused by a flood of the Umatilla river in the year 1876, and which aperture had never been filled with dirt, but across which a fence built of rails and poles had been constructed. That respondent has thereby been deprived of the use of said water for the purposes of irrigation and watering stock, and has been greatly damaged by means of the increased flow of water upon his premises in said northerly channel, etc.

Appellant in his answer, in substance, claims that the waters of the spring branch, prior to the digging of ditches, all reunited on his land and flowed onto respondent's land, through the most northerly of the channels described in the complaint, and that the water which flowed northerly on respondent's southeast corner came from a slough which has its source in Daniel Simmon's farm, and which does not naturally unite with the waters of the spring branch until after it passes onto respondent's land. That Daniel Simmons and respondent, acting together, have constructed ditches on Simmons' land, which have changed the natural flow of the waters of the spring branch, and that appellant has thereby been injured. That Simmons has built a dam across the spring branch and backed up the water into appellant's cellar. That respondent, about two years ago, constructed an embankment across the north channel described in the complaint, by means of which the waters of the spring branch have been backed up

on appellant's land and his meadow overflowed, to his damage, etc.

J. H. TURNER, and DOLPH, BRONAUGH, DOLPH & SIMON, for appellant.

LUCIEN EVERTS, for respondent.

By the Court, BOISE, J.

There are in this case no legal propositions which present any difficulty. If the stream of water in controversy was running in a well defined channel through the lands of the respective parties, they would each have a right to have it continue to flow in its natural course without diminution, except so far as the same might be legally used by each riparian proprietor, while passing through his premises, for domestic use, stock and reasonable irrigation. But from the evidence, it appears that this stream, before its flow was disturbed by ditches, spread out on the lands of both parties into a swamp, with no fixed and definite channels, especially when the water was flush. It entered the lands of the appellant by two channels, and the evidence is conflicting and uncertain which carried the most water at the time the first ditch was made, which is marked on the map in the brief as ditch S. We think, however, that the evidence tends to show that prior to the making of this ditch, which was about the year 1861, some of the water flowed about the southeast corner of Coffman's land, and stood in stagnant sloughs during the dry season. This appears from the direct testimony of some of the early settlers, and from the testimony of the surveyor, F. E. Habersham, who shows from the elevations of the ground that the water could flow about said corner, and he traces old channels or swales leading around that point; and the undisputed fact that this stream spread out and made a swamp which produced tules or rushes near this locality, shows that the water must have gone there and remained during the season. The testimony, however, tends to show that before ditch S was made the surplus water flowed on in different channels across the lands of appellant, and most of it passed onto the land of respondent at or about the point marked "levee" on the map.