Re Determination of Water Rights of Hood River.

BURNETT, J.,

Specially Concurring With Mr. Justice MoCOURT. — One who, prior to the passage of the Desert Land Act of March 3, 1877, acquired from the United States title to land through which flowed a stream to the waters of which no one except the government at the time had any right, took with the land as part thereof an estate in the water flowing in the stream. This right to the use of the water, by reason of the situation of the settler on the stream, was something not enjoyed by anyone subsequently entering upon lands not washed by the stream and was entitled to the protection of the law. It was the riparian right known to the common law. It was vested in the settler simultaneously with his acquisition of title to the land. By virtue of this right the bank owner supplied to his household water taken from the stream, let his domestic animals drink of its waters and made such use of the water flowing there as he could for power purposes on the condition that he took it out and returned it to the channel on his own land, allowing it to flow on down to lower riparian owners unimpaired in quality and undiminished in quantity except as consumed for the domestic purposes mentioned. That such riparian

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rights have been recogniezd, maintained and protected in Oregon is thoroughly demonstrated by the precedents cited by Mr. Justice McCotjrt. Such rights are included in the clauses “subject to existing rights” and “vested right of any person, firm, corporation or association to any water” found in the Oregon Water Code: Or. L., §§ 5716, 5717.

Vested as they were at and prior to the passage of the Water Code in 1909, dating back to the first settlement upon government lands, it was not within the power of the legislative department to divest the owners of those rights except by the exercise of the right of eminent domain upon due compensation. The act protects the vested rights of both riparian owners and appropriators and it would be unconstitutional if it were properly construed as impairing those rights.

Appropriation of water had its origiii in early mining days when no one cared for the title to land after the precious metals had been washed from the placers. Water was the prime essential for that process and the miners took it wherever they could obtain it. Naturally, he who was prior in time was held to be paramount in right. The general government, as owner, in almost every instance, of the lands upon which appropriations of water were made, tolerated them, then recognized the customs of miners and finally by such legislation as the Desert Land Act, gave statutory sanction to appropriation of water but always, as stated in that statute, “subject to existing rights.” In time, as placer mines were exhausted and the people engaged more extensively in pastoral and agricultural pursuits in the western country, water came to be appropriated

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for those purposes. So it resulted that while at common law the controlling idea about water was to allow it to flow on in the stream as nature placed it, public necessity in the arid west gave rise to the new theory that water should be taken out of the stream wherever possible and put to some beneficial use. Benefit, not ornament, is the ideal in the use of water in this state. Hence the rule has come into existence, applicable to all users of water, whether bank owners or appropriatoxs, that when one has no present use for water, he must allow it to be employed by another who will then apply it to some beneficial purpose. Even a prior appropriator having no present use for the water he has appropriated, must for the time being yield to the junior appropriator who stands ready to use it. This does not necessarily mean the extinction of the estate of the senior appropriator. His right may be only temporarily in abeyance and will again come into operation when he has a' present use for the water. The use of the water by the junior under such circumstances is not adverse to but in deference to the superior appropriation. So also as between a riparian owner and a subsequent appropriator, the latter may use the -water to the extent that the former has no present employment for it and such use is not necessarily hostile nor adverse so as to result in title by prescription. It is only when the present beneficial use of water by one entitled to use it, whether he be an appropriator or a riparian owner, is invaded in a hostile manner that title by prescription will result if the invasion is maintained continually for ten years. If the rule were otherwise, rotation among water users could never be accomplished.

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Being thus vested, no court or legislature can lawfully abridge those riparian rights nor take them from the owner unless by proper exercise of eminent domain. The most that can be done is to provide for the use by others of the water when and to ’the extent not employed by the riparian owner. This is a matter of administration applicable to all manner of water rights and does not give rise to a permanent estate in the water in derogation of the senior title. For illustration: to require one who uses water only in the wet season for mining whether as an appropriator or as a riparian owner, to allow it to flow to some junior appropriator during the season of, and for the purposes of irrigation does not lessen the estate of the miner. It only promotes the paramount purpose of applying the water to a beneficial use. So in the present instance, it would be competent as an administrative measure under proper legislative regulations to require the Pacific Power and Light Company to allow the surplus water, beyond what it is presently using, to go to those who, though junior in time and right, are ready at once to employ the water. As in the beginning, the riparian owner had the right to use all the water of the stream on condition that he both diverted and returned it to the channel on his own land, this right will continue unimpaired to be called into action and full enjoyment whenever he can beneficially use all the water. It would be an unlawful abridgment of the riparian owner’s right to ascertain and determine finally and for all time that a fixed amount of water less than the full capacity of Hood River is all that he will ever have the right to use. To thus limit the exercise of riparian ownership is to turn the bank owner into

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an appropriator against Ms will, and diminish his estate in the water.

There is no difficulty in law about the recognition and maintenance of riparian rights and appropriations. They are no more incompatible than titles to land by judgment and execution, or by prescription, or by deed, are inconsistent with each other. It is all a matter of the tenure by which the right to use the water is held. The whole argument about their incompatibility springs from the desire of those who have not, to possess without paying for it, the property of those who have. Priority in either case spells supremacy and this cannot be defeated except by abandonment, voluntary alienation pr through the operation of eminent domain.

It has been said

“that the

rights of the Power Company could have been condemned by the appropriators of the water under the act of 1891.’? The company never had or claimed anything else than riparian rights which accompanied and were part of the land derived by an unbroken line of conveyances from the holder of the allodial tenure, the United States. If the company had something to condemn, it has something which, in the absence of condemnation, the courts are bound to protect, the same as any other property. On the other hand, if the rights of the appropriators who came upon the stream after the company and its grantors, are superior to those of the latter, there is no 'need of condemnation. Resort to eminent domain is had only for the ex-tinguishment of what is otherwise a paramount title.

It has also been said

arguendo

“that the Power Company could have exercised its right to appropriate

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all the water of Hood River for power purposes.” So far as that is concerned, and so long as it both diverted and returned the water on its own land there was no occasion for appropriation, for the use of the whole stream would not be in derogation of the rights of other riparian owners. Appropriation in the true sense occurs only where water is taken from a stream and never returned. It happens also when a riparian owner takes out water claiming a certain fixed quantity to the exclusion in whole or in part of lower riparian owners and does not return it to the channel for their use. By such action he abandons his role of riparian proprietor, severs his tenancy in common of the . water with other riparian owners, and becomes an appropriator or tenant in severalty of the amount he takes out. He cannot be an appropriator and a riparian owner simultaneously because no one can be at once a tenant in severalty and a tenant in common of the same property:

Caviness

v.

La Grande Irr. Co.,

60 Or. 410 ( 119 Pac. 731 ). In that case the following excerpt appears:

“Primarily, any use of the water of a natural stream for a beneficial purpose is free to him who has an opportunity to take it without infringing upon the property rights of another. * * Concerning the mere diversion and use of water there is no difference between a nonriparian appropriator and riparian user, provided the former has a lawful right of access for that purpose to the stream from which the diversion is made. The essential condition of appropriation in the first place on public lands was the consent or acquiescence of the then riparian owner, the general government. The reason of the rule is not changed by the fact that the riparian owner is a private person provided the

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appropriator has his consent, or, what is equivalent, that the appropriator and the riparian owner are one and the same person. The deduction then is that if any one can lawfully gain access for that purpose to a non-navigable stream, and water is there not subject to use by another, such a one may appropriate it for his own use.”

Mr. Chief Justice Eakin, while concurring in the result, withheld his assent to that portion of the opinion on the ground that its effect would be to abolish riparian rights. His dissent indicates his conviction of the existence and validity of those rights but his fears for them were groundless. The quoted language was illustrative of the difference between the prevailing ideas respecting the use of water in common-law times and in the modern days in the dry parts of this country. Then the controlling thought was to let the water flow in the stream according to nature’s design. Now it is to divert it and use it elsewhere for beneficial purposes. The latest theory sprang from the necessities of the times and country, beginning with the early placer mines in California and extending gradually to agriculture and horticulture. If one desiring to appropriate water could lawfully gain access to a stream, that was but one step towards the fulfillment of his purpose. He might then find that the rights of lower riparian proprietors had attached before he got to the water. These he was bound to respect, the same as any other right appertaining to their lands and thus he would be prevented from appropriating water to their damage.

No one questions the right of the legislature in virgin territory, before riparian rights have attached, to abolish that feature of property in lands; but

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after such rights have accrued to the owners of land bordering on streams of water, no legislation is valid which would destroy those rights to subserve the interest of another class of people. The doctrine of riparian rights, as known to the common law, had been so often recognized and enforced in this state prior to the enactment of the "Water Code that it was thoroughly established in the jurisprudence of the commonwealth. It is believed that such a measure could not have become a law without containing the reservation it has in favor of “vested rights.” That class of legislation came too late in the history of Oregon to overturn riparian rights so numerous and so long enjoyed. The legislature could not constitutionally do so. It did not so Intend nor act. On the contrary, it expressly excepted vested rights from the operation of the statute.

After riparian rights are lawfully acquired, they continue and abide the same as any other part of the land to which they belong. They may be regulated so as to provide for the use temporarily by others of the surplus water that is not employed at the time by the riparian owner. The same principle applies as between senior and junior appropriators, the design being to effect the maximum beneficial use of the water, having due regard to vested rights. But as to the use by others of the surplus, it must yield whenever the owner of the prior right, whether riparian or that of an appropriator, has present use for it. When that condition arises, the riparian owner or the prior appropriator has the prerogative of retaking the water to the full extent of his right as against the junior user of the surplus. In the case of the owner of riparian rights under such

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circumstances he can retake the whole of the stream if his diversion and return are both on his own land provided he puts the water to a beneficial use. Use of the mere surplus under temporary regulation is not adverse to the paramount right in the water. It is only adverse when it interferes without their consent with the present beneficial use of the water by the prior appropriator or the prior riparian owner. The riparian right being part of the land, courts have no jurisdiction to limit the owner permanently to the amount of water he is now using for power purposes as such riparian owner nor restrict in that manner the future expansion of his plant.

As well as irrigation, the production of electric light and power is a useful purpose and, in this case, the Pacific Power & Light Co., being the riparian owner under title antedating all the appropriations mentioned in the record and engaged in that pursuit has the right to enlarge its plant in the future so as to use as such riparian owner all the water of Hood River, allowing the surplus in the meanwhile, beyond its present needs, to go to the benefit of junior water users as their interests may appear.

For the foregoing reasons as well as for those he has advanced, this is the plain deduction from the able opinion of. Mr. Justice Me Court, with which, in that sense, I concur.