WITHERS v. Reed

LATOURETTE, J.,

DISSENTING.

The pivotal question in this case is whether or not the failure of the state of Oregon, successor to one Lowe, to use the water for a period of five years theretofore appropriated by said Lowe, a World War I veteran, deprived of it its water right under § 116-437, OCLA.

The legal principal involved in this case is well-stated in State Land Board v. Lee, 84 Or 431, 434 , 165 P 372 , as follows:

“Stated in broad terms, it is a rule of universal recognition that the government is not included in *581 a general statute of limitation unless it is expressly or by necessary implication included. This rule is said to be founded upon the legal fiction expressed in the maxim nullum tempus occurrit regi. However, it is not necessary to predicate this salutary precept upon any fiction, since sound reason for the rule is found in the fact that as a matter of public policy it is necessary to preserve public rights, revenues and property from injury and loss by the negligence of public officers.”

There being nothing in § 116-437, OCLA, expressly providing that the state of Oregon is affected by such provision, the case is then brought down to the narrow question of whether or not the state becomes affected by such section by necessary implication in the interest of public policy. It is opined in the majority opinion that certain state agencies authorized by law to appropriate water are placed in the same category as individuals, and that they, therefore, are subject to the aforesaid five-year limitation. From this premise, it is concluded that the state in the present case, by analogy, would likewise be subject to such limitation. The distinction is that under the veterans’ loan act there is no authority given to the veterans’ commission to appropriate water. The statute is silent on this subject.

Somewhat related to this matter is the legislation authorizing the State Land Board to loan money from the irreducible school fund. There is nothing in that legislation authorizing such land board to appropriate ivater under the water code. If § 116-437, OCLA, applies to the case at bar, it would likewise apply to the State Land Board where loans are made from such irreducible fund to a person who had a water right covered by such loan, the State Land Board later acquiring the property to which such water right was appurtenant. In such a case, the State Land Board’s *582 fund, instead of being irreducible, would be reducible, and public revenues would thereby be greatly affected because, without a water right, in some arid regions of the state, the land would be worthless. By analogy, therefore, it is obvious that under the prevailing opinion the state would be subject to great loss in revenue were it compelled to acquire land with an appurtenant water right in arid regions, such as we have in the present case, where veterans had defaulted in their loans.

The holding of the majority is a dangerous precedent and might lead to far-reaching, disastrous and damaging results.

It is significant that § 116-437, OCLA, exempts cities and towns from the five-year limitation. The reason for such limitation is apparent in that cities and towns have the right to appropriate the water under the water code, and had they not been exempt, it is clear that the legislature thought that having the same status as ordinary water appropriators, they might come within the five-year limitation. Had the legislature been of the opinion that the state might be considered as being included in such limitation, it is logical to assume that it would have expressly exempted itself. It seems a thin stretch of judicial construction to hold that the legislature would expressly exempt cities and towns and intend to include itself.

It is stated in the majority opinion that, “The determinative factor is whether ‘the controlling motive’ of the statute is the general good of the state.” From this, it is argued that the beneficial use of water is of paramount importance to the general public, and, since, if the state does not utilize the water for a great many years, the public being deprived of its use, there would be great detriment to the public.

*583 The preservation of the revenues of the state is also of paramount importance and, in my opinion, of greater general public importance than the alleged loss of the use of appropriated water in that the former touches the purse strings of all the public while the latter affects only the limited few water users.

It is well-known that in the arid regions of this state where irrigation is employed, the water rights appurtenant to the land give value to the land, and, without it, the land would be practically worthless, so that if the state were deprived of the water right when it acquired the land, as in the instant case, the state would lose nearly the entire loan made to the veteran, and if there would be a depression, the loss might run into a considerable amount of money. Such loss would have to be made up by the taxpayers of the state. On the other hand, where the state fails to use the water over an extended period of time, it does not necessarily mean that the water is wasted because, if there is a shortage of water, the appropriators below the state lands would enjoy the benefits of the water not used by the state.

I do not believe that § 116-437, OCLA, applies to the state in the instant case. I, therefore, dissent.