Benjamin N. Cardozo

“ No claim is made by the complainant that the waters of Mill creek have been illegally diverted. Indeed, the fact appears to be that the inhabitants of Washington use the waters of that creek to the exclusion of any use thereof by the inhabitants of Oregon. The claim of wrongdoing has its center in the use of the waters of the Walla Walla arising above the Red Bridge. ”

“ This priority, though recognized in Washington, is contested by Oregon. The project affected by that award was started in 1892 by the Walla Walla Irrigation Company. A canal to connect with the Walla Walla river was to carry water for irrigation to a tract known as the Gardena district, twelve miles or more away. Work on the canal was slow and intermittent, chiefly for lack of funds. About 1903 the engineers discovered that the best land in the District could not be irrigated at all unless the plans were greatly changed. ”

“ Not till 1904 or later was water in the canal applied beneficially to any acreage in Washington except in trifling quantities. Long before that time, beginning in 1880 or earlier and continuously thereafter, irrigators in Oregon had been appropriating to themselves the waters of the river above the Red Bridge. ”

“ Water turned past the Red Bridge sinks and becomes part of the underground waters.' 'To limit the longestablished use in Oregon would materially injure Oregon users without a compensating benefit to Washington users.' These findings are well supported by the evidence. Complainant has brought forward no adequate reason for disturbing them. ”

“ The essence of the doctrine of prior appropriation is beneficial use, not a stale or barren claim. Only diligence and good faith will keep the privilege alive. Seaweard v. Pacific Livestock Co., 49 Or. ”

“ As to this and other charges of damage or wrongdoing, the burden of proof falls heavily on complainant, more heavily, we have held, than in a suit for an injunction where states are not involved. North Dakota v. Minnesota, supra ”