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Show WALLA WALLA RIVER LITIGATION 781 dence. Complainant has brought forward no adequate reason for dis- turbing them. Connecticut v. Massachusetts, supra, at p. 669. Accept- ing them, as we do, we accept also the conclusion to which they point with inescapable directness. To restrain the diversion at the bridge would bring distress and even ruin to a long established settlement of tillers of the soil for no other or better purpose than to vindicate a barren right. This is not the high equity that moves the conscience of the court in giving judgment between states. North Dakota v. Minne- sota, supra; Connecticut v. Massachusetts, supra; Kansas v. Colorado, 206 U.S. 46,109. Far from being that, it is, rather "the summum jus of power." Mutual Life Insurance Co. v. Johnson, 293 U.S. 335, 339. In default of reasons for removal more urgent and compelling, the tillers of the soil will be left where they have settled. Cf. Hough v. Porter, 51 Ore. 318, 415; 95 Pac. 732; 98 Pac. 1083; 102 Pac. 728; Matheson v. Ward, 24 Wash. 407,411; 64 Pac. 520. The question must still be met whether the waters when diverted are misapplied or wasted with ensuing loss to the complainant. As to this the findings are explicit, and they are supported by the evi- dence. "The use of water by the irrigators within the State of Oregon is not unduly wasteful but is, under the circumstances, a reasonable, beneficial and necessary use." Nor does the evidence sustain the alle- gation of the bill that through the diversion of the stream and the application of the water to new irrigated lands the underground water supply lias been so shifted to the west that it does not return to the river at such a point as to be usable by the inhabitants of Washington. As to this and other charges of damage or wrongdoing, the burden of proof falls heavilv on complainant, more heavily, we have held, than in a suit for an injunction where states are not involved. North Dakota v. Minnesota, supra: Connecticut v. Massachusetts, supra. The burden has not been borne. On the contrary, the Master finds on the basis of supporting evidence that "a substantial part of the water applied to irrigation in Oregon . . . goes into the underground water supply," and returns to the river. Indeed, he goes farther and con- cludes that "the use of water for irrigation within the State of Oregon is beneficial to irrigators within the State of Washington," by feeding the many springs that supply the main river later in its course. Whether this is so or not, certain at least it is that the injury, if there is any, does not appear "by clear and convincing evidence" to be one "of serious magnitude." Connecticut v. Massachusetts, supra; New York v. New Jersey, supra. Between the high contending parties whose interests are involved, nothing less will set in motion the re- straining power of the court. Next to be considered is the practice of the defendant's farmers in sinking wells upon their farms. This is stated in the findings. "In addition to the surface water available for use within the State of Oregon, the farmers have tapped the subsurface water supply by sink- ing about three hundred wells, from which wells they pump each year approximately 9,000 acre feet of water. The water so pumped is used upon the lands where the several wells are located." A different question would be here if the water when extracted had been sold or otherwise employed for use on distant lands. Such use is unlawful according to the rule in manj' courts [citing cases], though the deci- |
