Dalton v. Kelsey
Oregon Supreme Court
From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is an action at law by James Dalton against L. S. Kelsey to recover damages caused by an alleged diversion of irrigating water from a ditch owned in common by plaintiff, defendant, and others, by which unlawful diversion plaintiff claims that his crops for the years 1903, 1904, 1905, and 1908 were destroyed or injured. There is a separate cause of action for each year.
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From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is an action at law by James Dalton against L. S. Kelsey to recover damages caused by an alleged diversion of irrigating water from a ditch owned in common by plaintiff, defendant, and others, by which unlawful diversion plaintiff claims that his crops for the years 1903, 1904, 1905, and 1908 were destroyed or injured. There is a separate cause of action for each year. The complaint alleges, in substance, that plaintiff is the owner of certain land, therein described, which is totally unproductive without artificial…
1Opinion of the CourtJustice McBride
1. It is claimed that the complaint does not state facts sufficient to constitute a cause of action, because it does not show that plaintiff was the appropriator of any water *250or had any right to divert water from the ditch. If this were an action between persons claiming the same water by prior appropriation, there would be merit in the objection, but here plaintiff claims the right to use the Kelsey-Dalton Ditch by virtue of an agreement with defendant, and if he could procure the water, as he alleges that he could, his source of title was no concern of defendant so long as he did not assume…
2Cases cited4 opinions
- McPhee v. KelseyOregon Supreme Court · 1903
- Lindeman v. LindseySupreme Court of Pennsylvania · 1871
- Carnes v. DaltonOregon Supreme Court · 1910
- McPhee v. KelseyOregon Supreme Court · 1904
3Cited by14 opinions
- Securities-Intermountain, Inc. v. Sunset Fuel Co.Oregon Supreme Court · 1980
- Dowell v. MossbergOregon Supreme Court · 1961
- Norwood v. Eastern Oregon Land Co.Oregon Supreme Court · 1931
- James v. HenryDistrict Court, Virgin Islands · 1957
- Deetz v. Cobbs & Mitchell Co.Oregon Supreme Court · 1926
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