Eastern Oregon Land Co. v. Willow River Land & Irrigation Co.

The parties herein will be designated as they were in the court below; the plaintiff in error here having been the defendant in the action. The action was brought by the plaintiff to condemn rights of way for canals, laterals, ditches, and siphon lines necessary for an extensive irrigation scheme over the lands of the defendant in Malheur county, in the state of Oregon. The several parcels so sought to be condemned comprised in the aggregate 67.3 acres. A jury trial was waived by stipulation of the parties, and the cause was heard before the Circuit Court. The court found in favor of the plaintiff on all issues involved, and a judgment *518 was entered condemning the lands to its use on the payment to the defendant of the sum of $2,375 and costs.

The issues raised by the pleadings involved two principal questions: First, whether the plaintiff was a corporation such as to be entitled to exercise the right of eminent domain; second, if it were such • a, corporation, whether prior to the commencement of the suit it had taken the steps which under the law it was required to take as preliminary to the exercise of that right. Upon these issues the trial court found for the plaintiff.…

(dissenting). I am of the opinion that the plaintiff is not a public service corporation and is not engaged in delivering water for public use. This opinion is based upon the limitations contained in the act of February 18, 1891 (Laws of Oregon, 1891, p. 52), as amended in 1899 (Laws 1899, p. 201), 1901 (Laws 1901. p. 136), 1905 (Laws 1905, p. 204), and 1909 (Laws 1909, p 132), codified in Lord’s Oregon Laws as sections 6525 to 6550. The act pro *526 vides that a corporation organized for the construction and maintenance of a ditch or canal or flume for general irrigation purposes, or for supplying water for household and domestic use, and for watering live stock upon dry lands, may appropriate and divert water from its natural -bed or channel and condemn rights of - way for its ditch, canal, or flume, and may condemn rights of riparian proprietors upon the lake 'or stream from which such appropriation is made upon complying, with the terms of the act.

The use of the waters of the lakes and running streams of the state for general rental, sale, or distribution for the purposes mentioned in the act is declared by section 1 (Lord’s Oregon Laws, § 6525) to be a public use, and the…