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Show 782 INTERSTATE ADJUDICATIONS sions are not uniform. Acton v. Blundell, 12 M. & W. 324.1 Again, a different question would be here if the waters, though subterranean, followed a defined channel, instead of percolating vagrantly through rocks and sand and gravel. [Citing cases.] Here the water level is on such a slope that, without any pumping, gravity would take the water away from the channel of any stream, either above the surface or below it. In such circumstances the right to pump in reasonable quantities for the beneficial enjoyment of the overlying land is allowed even by those courts that have placed the narrowest restrictions on the use of percolating waters. [Citing cases.] 2 In saying this we do not intimate, either one way or the other, that our conclusion would be different if the geological formation were other than it is. To all this we add that once more as at other stages of the case complainant has been unsuccessful in supplying evidence of damage. As to that the Master finds: "There is no satisfactory proof that the use of the water from these wells materially lessens the quantity of water available for use within the State of Washington." If any wrong has been done, it is unsubstantial and uncertain. What has been said avails without more to repel the claim of the complainant that by the dams at the Red Bridge or by the use of wells or pumps, the Oregon irrigators are wrongfully diverting or deplet- ing the waters of the river to the prejudice of irrigators resident in Washington. To repel this claim of wrong, however, does not dispose of the whole case. The question remains whether the Oregon irri- gators as a result of all their acts are taking to themselves more than their equitable proportion of the waters of the river, priority of appropriation being the basis of division. As to this too the Master has reported in their favor. For the understanding of his ruling and its satisfactory appraisal there is need to recur briefly to the claim of the Gardena Farms. Washington does not challenge the priorities adjudged in the Oregon decree. Oregon does not challenge those adjudged in the Washington decree, except only the priority allotted to the Gardena Farms. If that priority is excluded, the Oregon irrigators have not exceeded their equitable quota, at all events in any measure so substan- tial as to call for an injunction in a contest between states. A notice posted in 1892 fixed the locus of the intake of the canal for the Gardena project. This intake was far above the point where the branches of the Little Walla Walla unite with the main stream, if we except a few prongs of insignificant extent. The projectors of the canal were thus informed from the beginning that none of the waters of the Tum-a-lum above the Red Bridge would be available for the canal during the season of summer irrigation as long as the Oregon farmers were permitted to maintain the dams that diverted the waters of the Tum-a-lum into the Little Walla Walla. The physical condi- tions were notorious and were known to the canal company and, in particular, to its president, the leader of the enterprise. What was done or omitted in keeping the appropriation alive against the Oregon farmers in the vicinity of Milton must be read and interpreted in the light of that knowledge and its resulting obligations. 1 For a full collection of the cases see 55 A. L. R. 1390. 2 Many cases are collected in Kinney, Irrigation and Water Rights, 2d ed., vol. 2, pp. 2162-2167; Wiel, Water Rights in the Western States, 3d ed., vol. 2, §§ 1042 et seg. |
