I dissent from the conclusions reached in the opinion of Mr. Justice BEAN, that the rights of the Pacific Power and Light Company to the use of the waters of Hood River upon its riparian lands for the purpose of developing power for generating electricity for sale and distribution are subordinate and inferior to the claims asserted herein to the use of the waters of the stream for irrigating nonriparian lands, by claimants whose rights are based upon appropriations, followed by diversion of the waters of the stream for less than the period necessary to gain *Page 214 title by prescription, such claims having been initiated long after the riparian rights of the Power Company and its predecessors had vested, and long after all the lands bordering along the stream, except a few tracts immaterial to the determination of the controverted claims herein, had passed into private ownership.
It is well settled that the title to land or water having once passed from the United States, can be acquired or lost only in the manner prescribed by the law of the state where such land or water is situated: Kinney on Irrigation and Water Rights (2 ed.), § 449.
All the lands for which riparian rights are claimed by the Power Company in this case were granted by the United States to the state — part of them as school lands in 1859, and the remainder in 1868 by virtue of a selection made by the state for internal improvements under the act of Congress of September 4, 1841. Hood River flows through those lands. None of the claims asserted to the use of the water of Hood River, and based upon appropriation, attached to the lands or the water before the land was granted to the state or while the state held title to the same. The United States granted the lands to the state without any reservation of water or other rights, and the state in turn conveyed the lands to the predecessors of the Power Company without reservation or exception, all before any statute was adopted in this state authorizing the appropriation of surplus water from streams flowing through the lands of individuals for use upon nonriparian lands.
In the case of Eastern Or. Land Co. v. Willow River L. Irr. Co., 187 Fed. 466, United States District Judge BEAN, long a distinguished member of *Page 215 this court and the writer of many of its decisions relating to the use of waters, said:
"The general doctrine of riparian rights is too firmly established in this state to be shaken now by judicial decision. It is useless to cite authorities. The riparian proprietor is entitled to the ordinary and usual flow of a stream as long as it is of any beneficial use to him * *."
Notwithstanding the above authoritative statement of the law, the Water Board and the lower court held in the instant case that a riparian owner cannot successfully assert his riparian rights upon a non-navigable stream, as against a subsequent appropriator of water from that stream for the irrigation of nonriparian lands, even where the title to the riparian lands passed from the United States before 1877, when the riparian proprietor has not, prior to notice of such appropriation, applied the water of the stream flowing over or through his lands to some beneficial use upon those lands.
The question is one of great importance, particularly in the eastern portion of the state, where the supply of water for irrigation is limited and where there are wide areas of semi-arid land that are unproductive without artificial irrigation, but which, when reclaimed by irrigation, will yield a variety of large and valuable crops. In many places in that region the entire flow of the available streams is insufficient to completely irrigate all the lands susceptible of irrigation in a given locality, and those promoting irrigation projects therein, which contemplate the diversion of the waters of a particular stream, look with impatience upon, and are disposed to give scant consideration to claims asserted by lower riparian owners upon such stream to the undiminished *Page 216 flow thereof, especially where the riparian owner is not presently utilizing the waters of the stream for generating power or for irrigating his riparian lands: Wiel on Water Rights in the Western States (3 ed.), § 743. Where, however, the riparian proprietor owns a vested right to the use of the waters of the stream flowing through or over his land, which right was recognized by the statutes of the state or the decisions of this court at the time title to the land passed into private ownership, neither the public interest nor the urgent needs of those desiring to use the water can be permitted to divest such riparian proprietor of that right, except in conformity to well-known constitutional requirements: Weiss v. Oregon IronCo., 13 Or. 496 (11 P. 255); Kamm v. Normand, 50 Or. 9, 22 (91 P. 448, 126 Am. St. Rep. 698, 11 L.R.A. (N.S.) 290); In reWillow Creek, 74 Or. 592, 627 (144 P. 505, 146 P. 475);Lux v. Haggin, 69 Cal. 255 (4 P. 919, 10 P. 674, 697);San Bernardino v. Riverside, 186 Cal. 7 (198 P. 784, 794);Miller Lux v. Madera Land Co., 155 Cal. 59 (99 P. 502,512, 22 L.R.A. (N.S.) 391); Clark v. Cambridge Irr. Co.,45 Neb. 798 (64 N.W. 239); St. Germain Irr. Co. v. Hawthorn DitchCo., 32 S.D. 260 (143 N.W. 124, 126); Humphreys-Mexia Oil Co. v. Arsenaux (Tex.Civ.App.), 244 S.W. 280; Smith v.Nechanicky, 123 Wash. 8 (211 P. 880); City of New Whatcom v. Fair Haven Land Co., 24 Wash. 493 (64 P. 735, 739, 54 L.R.A. 190).
Comparatively early in the judicial history of the state, this court by its decisions enforced and applied the common-law doctrine of riparian rights, as defined and established by the American and English cases and by eminent text-writers: OregonIron Co. *Page 217 v. Trullinger (1876), 3 Or. 1; Taylor v. Welch (1876),6 Or. 198; Hayden v. Long (1880), 8 Or. 244; Coffman v.Robbins (1880), 8 Or. 278; Shively v. Hume (1881), 10 Or. 76; Shook v. Colohan (1885), 12 Or. 239 (6 P. 503); Weiss v. Oregon Iron Co. (1886), 13 Or. 496 (11 P. 255).
The case last cited was a suit by a riparian proprietor to enjoin the defendant, an upper riparian proprietor, from diverting the water of Tualatin River into Snake Lake for manufacturing purposes. Plaintiff had not made, and so far as the record shows did not propose to make in the immediate future, any beneficial use upon his lands of the waters flowing in the river. Defendant urged that plaintiff was not entitled to relief, for the reason that he was not applying the water to a beneficial use and therefore should not be permitted to obstruct or prevent defendant's manufacturing enterprise. The evidence showed that the defendant had diverted one-fifth, or perhaps more, of the water of the stream from its natural course and turned it away from the other riparian owners, without restoring the unused surplus to its natural channel. Mr. Justice LORD, who delivered the opinion of the court, said:
"The general doctrine relating to watercourses is that every proprietor is entitled to the use of the flow of the water in its natural course, and to the momentum of its fall on his own land. The owner has no property in the water itself, but a simple usufruct. He may use it as it passes along, but he must send down to his neighbor below as much as he receives from his neighbor above. (Angell on Watercourses, §§ 90, 94.)"
Mr. Justice LORD carefully examined all the leading American and English cases and the text-books *Page 218 defining the common-law doctrine of riparian rights, and supported his opinion by pertinent references thereto and extended quotations therefrom. He said:
"As a result of the American and English cases, the common-law doctrine is thus summed up in the editorial note to Heath v.Williams, 25 Me. 209 s.c. 43 Am. Dec. 275: `The general principle is, that every owner of land through which a natural stream of water flows has a usufruct in the stream as it passes along, and has an equal right with those above and below him to the natural flow of the water in its accustomed channel, without unreasonable detention or substantial diminution in quantity or quality, and none can make any use of it prejudicial to the other owners, unless he has acquired a right to do so by license,grant, or prescription.'" (Italics ours.)
Referring to the nature of the right of a riparian proprietor to the use and flow of the waters of a stream flowing along or over his land, the cases and texts cited by Mr. Justice LORD declare that the right is an inherent incident to the ownership of the riparian land, like the right to enjoy the soil itself; that it is an absolute and fixed right annexed to the soil, not as an appurtenance, but as part and parcel of the land itself and belongs to the riparian proprietor by virtue of his mere ownership of the land; and that as part and parcel of the land, it passes with the land upon a conveyance thereof, and immediately vests in the grantee, although not especially mentioned in the deed. Those authorities declare further that the rights of the riparian proprietor do not depend upon the exercise of it, but he may begin to exercise his rights as to the water whenever he pleases. "Use does not create the right and disuse cannot destroy or suspend it," is the language of *Page 219 the courts and text-writers mentioned. Indeed, the authorities are in entire accord concerning the foregoing statement of the nature of riparian rights: Angell on Watercourses (6 ed.), §§ 5, 92, 92a; Gould on Waters (3 ed.), § 204; Washburne on Easements and Servitudes (4 ed.), p. 317; 2 Farnham on Waters and Water Rights, p. 1569; Black's Pomeroy on Water Rights § 9; Long on Irrigation (2 ed.), § 34; Wiel on Water Rights in the Western States (3 ed.), § 861; Kinney on Irrigation and Water Rights, (2 ed.), § 453.
After explaining the application of the foregoing principles to the facts of that case Mr. Justice LORD concluded the opinion inWeiss v. Oregon Iron Co., as follows:
"We do not think the contention of counsel for the defendant can be maintained upon principle or authority.
"Nor do we think the objection to the exercise of the jurisdiction well taken. Mr. High says: `A riparian proprietor owning to the center of a stream is entitled to the aid of equity to prevent a diversion of the waters from their natural channel. Nor does the neglect of complainants to use or appropriate the water-power, or the fact that they have as yet sustained but small pecuniary damage, or that defendants would be subjected to heavy expense if compelled to restore the water to its original channel, present such objections as would warrant a court of equity in refusing the relief.' (High on Injunctions, § 795, and authorities cited.)"
The foregoing decisions of this court recognized the right of a riparian proprietor to divert water for the reasonable irrigation of riparian lands where the stream carried a surplus of water, after supplying the natural wants of those owning lands bordering upon *Page 220 the stream, holding that each riparian proprietor had an equal right to the use of water for that purpose: Coffman v.Robbins, supra; Shook v. Colohan, supra.
While holding that rights relating to watercourses flowing through lands held in private ownership were governed by the rules of the common law, this court at the same time recognized and enforced the rule prevailing then and now in the western states, which entitles one to go upon the public lands of the United States and appropriate, divert and use water from a stream thereon for beneficial uses, thereby securing a right to the use of the water so appropriated, diverted and used, subject to vested and accrued rights, but superior and prior to the right of a subsequent appropriator or a subsequent grantee of the lands from the United States: Lewis v. McClure, 8 Or. 273; Kaler v. Campbell, 13 Or. 596 (11 P. 301); Tolman v. Casey,15 Or. 83, 88 (13 P. 669); Speake v. Hamilton, 21 Or. 3 (26 P. 855); Simmons v. Winters, 21 Or. 35 (27 P. 7);Hindman v. Rizor, 21 Or. 112 (27 P. 13).
It was held, however, that the rule last mentioned had no application to the lands of individual owners, and as against them could confer no right to divert the waters of streams flowing through their lands: Curtis v. La Grande HydraulicWater Co., 20 Or. 34 (23 P. 808, 25 P. 378, 10 L.R.A. 484).
Kaler v. Campbell, supra, was decided within two weeks after the decision in Weiss v. Or. Iron Co., supra. Mr. Justice LORD delivered the opinion of the court in both cases.Kaler v. Campbell was a suit in equity to restrain the defendant from diverting the waters of a small non-navigable stream running partly through the lands of the defendant. The court said: *Page 221
"It seems that when plaintiff settled his claim there was no other person above him upon the stream running through his land, nor any appropriation of its water. For the purpose of irrigating his soil, and for domestic and stock uses, he went above his land, and upon government land, and diverted the waters of Clover Creek. This he had a right to do, under the act of Congress; and to the extent he had actually appropriated and used, he had a vested right as to that amount or quantity of water, and whoever afterwards purchased above or below him took subject to such right of prior appropriation actually made by him. When, afterwards, the defendant acquired the title to the adjoining land, his right to appropriate the water of the creek to irrigate his land was subject to the prior appropriation of the plaintiff, and necessarily limited to whatever surplus remained."
It is important at this point to recall that the doctrine of riparian rights, as explained and defined by the decisions above referred to, prevailed in this state at the time the title to the riparian lands owned by the Power Company, and embraced in its power sites, was conveyed by the United States to the state, and by the state to the predecessors of the Power Company, and that the riparian rights incident to the land vested in the state when the United States parted with its title, and no adverse claim by appropriation or otherwise having attached while the state held the title, those riparian rights were conveyed by the state to the predecessors of the Power Company: Faull v. Cooke, 19 Or. 455 (26 P. 662, 20 Am. St. Rep. 836); Cole v. Logan, 24 Or. 304 (33 P. 568); Brown v. Baker, 39 Or. 66 (65 P. 799, 66 P. 193); Morgan v. Shaw, 47 Or. 333, 337 (83 P. 534); Kinney, Irrigation and Water Rights (2 ed.), § 449. *Page 222
The law as stated and established by the decisions above cited, so far as the same is material to the question under consideration, was followed and applied in the following cases:Low v. Schaffer, 24 Or. 239 (33 P. 678); Carson v.Gentner, 33 Or. 512 (52 P. 506, 43 L.R.A. 130); North PowderMilling Co. v. Coughanour, 34 Or. 9 (54 P. 223); Jones v.Conn, 39 Or. 30 (64 P. 855, 65 P. 1068, 87 Am. St. Rep. 634, 54 L.R.A. 630); Cox v. Bernard, 39 Or. 53, 60 (64 P. 860); Brown v. Baker, 39 Or. 66 (65 P. 799, 66 P. 193);Mace v. Mace, 40 Or. 586, 589 (67 P. 660, 68 P. 737);Oregon Construction Co. v. Allen Ditch Co., 41 Or. 209, 215 (69 P. 455, 93 Am. St. Rep. 701); Salem Flouring Mills Co. v.Lord, 42 Or. 82 (69 P. 1033, 70 P. 832); Brown v. GoldCoin Min. Co., 48 Or. 277 (86 P. 361), Parkersville Dist. v.Wattier, 48 Or. 332 (86 P. 775).
Jones v. Conn, decided in 1901, was a controversy between riparian proprietors upon a natural watercourse. Defendant was an upper riparian owner, and asserted the right to divert water from the stream for the purpose of irrigating his upland and to furnish better power to a grist-mill owned and operated by him. The plaintiffs had not been substantially injured or damaged on account of the use of water by defendant up to the commencement of the suit, but they insisted, nevertheless, that they were entitled to an injunction against the defendant, for the reason, as claimed by them that he proposed to use the water upon nonriparian lands. Mr. Chief Justice BEAN now United States District Judge, delivered the opinion of the court, saying:
"It is often said that a riparian proprietor has a right, inseparably annexed to the soil, to have the water of a stream flow down to his land as it is wont *Page 223 to run, undiminished in quantity and unimpaired in quality; and that, if an upper proprietor takes it from the stream, he must return substantially the same quantity again before it leaves his premises. This rule, however, is subject to the limitation now well established that each proprietor is entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes, and such use is not to be denied him on account of the loss necessarily consequent upon its proper enjoyment."
The above quotation from the opinion is followed by citation and reference to numerous cases supporting the principle that a riparian proprietor has a right to the enjoyment and use of a stream of running water and to derive every benefit he can therefrom by its use upon his land, including the generation of power, or diversion for reasonable irrigation, provided he does not thereby work any actual material and substantial damage to the rights of other proprietors either above or below him, and that such right is incident and appurtenant to the ownership of the land itself. After reviewing at length the authorities defining a riparian proprietor and his rights as such as against other riparian owners upon the stream, the court said:
"There is some conflict in the authorities as to whether a riparian proprietor can enjoin the use of water for the irrigation of nonriparian lands without showing damage (ModocLivestock Co. v. Booth, 102 Cal. 151 (36 P. 431); Gould v.Eaton, 117 Cal. 539 (49 P. 577, 38 L.R.A. 181); Fifield v.Spring Valley Waterworks, 130 Cal. 552 (62 P. 1054); but it is clear that a court of equity will not restrain the use of water by a riparian proprietor to irrigate his lands unless it is shown that such use will injure the other riparian proprietors. * * But, as the defendant has set up in his answer, and attempted to *Page 224 maintain by his testimony, the absolute right to sufficient water to irrigate his land, regardless of the effect it may have upon the other proprietors, the plaintiffs are entitled to such a decree as will prevent his use from ripening into an adverse title * *."
Cox v. Bernard, decided in 1901, was a suit brought by a riparian proprietor upon a stream to enjoin the defendants, who had no riparian rights, from diverting water from the stream. The trial court entered a decree in favor of the defendants. The Supreme Court, in its opinion reversing the decree of the lower court, quoted with approval from Long on Irrigation, Section 9, as follows:
"`Every proprietor of lands on the banks of a natural stream has an equal right to have the water of the stream to continue to flow in its natural course as it was wont to run, without diminution in quantity or deterioration in quality, except so far as either of these conditions may result from the reasonable use of the water for irrigation or other lawful purposes by upper proprietors.'"
Brown v. Baker, decided in 1901, was a suit to enjoin interference with the flow of water in the channel of a non-navigable stream to the head of plaintiffs' irrigating ditches. Plaintiffs diverted the water of the stream at points upon their own premises and it was objected by the defendant, that in order to secure priority in the appropriation of water, the stream or lake from which it is taken must be tapped at some point on the public domain. The court, discussing the right of an appropriator of water as against a riparian owner who has settled upon or acquired title to the riparian land from the United States prior to the inception of the claim to the waters by appropriation, said: *Page 225
"The water of a non-navigable stream is an incident to the soil through which it flows, and, as the United States is the primary proprietor of public lands, its grant of the waters thereof, in the Pacific Coast States, to the person having the priority of its possession (14 Stat. U.S. 253, c. 262), in the absence of aconstitutional provision or statute declaring water to be publicproperty, necessarily cuts off the right of a subsequent settlerto divert the water under a claim of prior appropriation. Title by relation gives to the first settler upon the public land the priority of possession of the water flowing through the same (Faull v. Cooke, 19 Or. 455 (26 P. 662, 20 Am. St. Rep. 836); Larsen v. Oregon Ry. Nav. Co., 19 Or. 240 (23 P. 974); Johnson v. Bridal Veil L. Co., 24 Or. 182 (33 P. 528); Cole v. Logan, 24 Or. 304 (33 P. 568), though he maynever appropriate the water to a beneficial use. If a lower riparian proprietor had acquired a right to the waters of Willow Creek prior to plaintiffs' diversion, such right would necessarily defeat their appropriation of the water, because the stream at the time of the diversion was not flowing through public lands. The right of prior appropriation is limited to the use of water by the pioneer settler before any adverse claims of riparian proprietors attach to the stream from which the water is taken, and not to the points of diversion, which may be either within or beyond the boundaries of the tract selected by such settler." (Italics ours.)
Oregon Construction Co. v. Allen Ditch Co., decided in 1902, was a suit by plaintiff, the owner of 1,520 acres of land through which the Umatilla River, a non-navigable stream, flows, to restrain the defendant from diverting any of the water for the irrigation of nonriparian land in disregard of plaintiff's riparian rights. The plaintiff had not used any of the water upon its lands. The defendant was a corporation, *Page 226 organized by water users to facilitate the distribution of water diverted among the members of the corporation. By the use of that water, many acres of land had been reduced from its wild and arid condition to a high state of cultivation. Orchards, shrubbery and ornamental trees had been planted, and the use of the water was absolutely essential to the maintenance of the then condition. The facts of that case render it very much in point here. Mr. Justice WOLVERTON, after reciting the facts, said:
"But, notwithstanding all this, if the plaintiff has a better right, under the law, to have it flow down the channel of the river, through and beyond its lands, by reason of its riparian ownership, than the farmers have to use it by virtue of a prescriptive right, the injunction should be maintained; otherwise not.
"The plaintiff's riparian right to have the water flow in the stream undiminished in quantity, except by the reasonable use thereof by riparian proprietors, is appurtenant to the land, running with it as a corporeal hereditament. Adverse possession to realty may have its inception in trespass, and naked possession under a claim of right actual, hostile, open and notorious, exclusive, and continuous for a period of ten years will, in this state ripen into a perfect title * *. In analogy to this principle the acquirement of a prescriptive right has come to be measured by the statute of limitations for the recovery of real property, and such is the rule in this state: Kinney, Irr., § 295: Dodge v. Marden, 7 Or. 456."
Brown v. Gold Coin Min. Co., decided in 1906, was a suit by a riparian proprietor to enjoin the pollution of a stream and the interference of the flow thereof by mining operations conducted by the defendant. The court said: *Page 227
"The plaintiff, being a riparian proprietor on Rith Creek, was entitled to have that stream flow through his premises undiminished in quantity, except as to the reasonable use thereof by other like proprietors, and unimpaired in quality, and because he might possibly secure water for his family and for his stock at other places on his land than the streams mentioned, does not impose on him the duty of resorting thereto to supply his needs, in order that a quartz mill may be operated."
Speaking of the conflicting claims between the parties — one claiming water for mining purposes, the other for agriculture — the court said:
"These and other like employments requiring the use of water from nonnavigable streams should be simultaneously conducted if possible. Where, however, a priority exists in the use of water, the party who makes a subsequent appropriation for any purpose inconsistent therewith must yield to the party possessing the superior right."
In Carson v. Gentner the court construed the legislative act of February 24, 1885, which granted to any individual or corporation a right of way over all lands belonging to the state, for the construction of water ditches to be used for irrigation, manufacturing or mining purposes, and provided that all patents issued by the state for any of its school, university, tide, swamp or overflowed lands, should be subject to any vested rights of the owners of such water ditches.
In connection with the above-mentioned statute, the court considered the legislative act of October 24, 1864. (Deady's Code, p. 812; Deady Lane's Code, p. 686; Hill's Code, §§ 3827-3836), relating to mining claims and water rights and empowering miners to make local laws in relation to the possession *Page 228 of water rights and the possession and working of placer mining claims subject to the laws of the United States. It was held that a prior appropriator of water from a natural stream flowing through state lands, obtains a vested right to the use of the water and to the ditch in which it flows also constructed on said lands, superior to the rights of one who, with notice of the diversion and existence of the ditch, obtains from the state a deed for the premises without reservation of any water right. The court, referring to the act of 1885, said:
"This statute was a legislative sanction, confirmatory of the customs of miners, and, like the act of Congress of July 26, 1866, was the recognition of a pre-existing right, rather than the granting of a new easement in its real property."
In the case of Parkersville Dist. v. Wattier, the legislative act (Laws 1868, pp. 21, 22), authorizing the drainage of land, was considered, Section 9 of which contained the following provision:
"This chapter shall not be construed so as to interfere with the rights of companies or individuals for mining, manufacturing, or watering towns or cities."
The court also referred to the act of February 24, 1885 (Laws 1885, p. 73), construed in Carson v. Gentner, and to the act (Laws 1899, p. 172), providing that all existing appropriations of water for beneficial purposes should be respected and upheld. The court, adopting the language used in Carson v. Gentner above quoted, held that the legislative provisions mentioned had the effect of recognizing the rights of settlers to divert and use the water flowing through the lands owned by the State of Oregon, with the same legal effect as like appropriations and *Page 229 diversions made upon the public domain of the United States.
In the instant case the State Engineer contends that the several legislative acts referred to in the case of Carson v.Gentner and Parkersville Dist. v. Wattier constituted a dedication of the waters in the running streams flowing through state lands to the public, and separated the title to such waters from the land, and that thereafter no grants of state lands to private individuals conveyed or transferred a right to the waters flowing over or through the same — this in analogy to the act of March 3, 1877, known as the Desert Land Act (Chap. 107, 19 Stat. at L. 377, U.S. Comp. Stats. 1901, p. 1548), as construed by this court in the case of Hough v. Porter, 51 Or. 318 (95 P. 732, 98 P. 1083, 102 P. 728). There is no similarity between the state statutes mentioned and the Desert Land Act, and those legislative acts do not contain any language susceptible of the construction claimed for them by the State Engineer. Under those statutes, and in the absence of a statute declaring water to be public property, neither the public, nor any member of it, acquired any right to the waters flowing across state lands, without diverting the same and applying it to a beneficial use, and then to the extent only of such beneficial use, and if prior to any such diversion and application to beneficial use, the state conveyed the land to a private individual without reservation, the right to make such appropriation and diversion, as against the rights of the grantee of the state, was lost:Brown v. Baker, supra.
In the instant case, all the lands involved passed from the state into private ownership before any attempt was made to appropriate the waters of the stream flowing over and through the same, consequently *Page 230 those statutes have no bearing upon the decision of the question under discussion.
Laws of 1891, page 52, was the first legislative enactment in this state authorizing the appropriation of water in this state from streams flowing through or over lands owned by private individuals, and the diversion thereof at points upon such land. That act declared the use of the waters of the lakes and running streams of the State of Oregon for general sale, rental or distribution for purposes of irrigation and supplying water for household and domestic consumption and watering livestock upon the dry lands of the state, to be a public use, and authorized any corporation organized for the construction of works to supply water for those purposes, to appropriate and divert water from its natural bed or channel and condemn right of way for its ditch, canal or flume and also to condemn the rights of riparianproprietors upon the lake or stream from which such appropriationis made, upon complying with the terms of the act. Section 8 of the act provided as follows:
"Such corporation may also maintain an action for the condemnation and appropriation of the right to the flow of the water in any stream from which it proposes to divert water below the point of diversion vested in the owners of lands lying continguous to such stream by virtue of their location * *. But no person owning lands lying contiguous to any stream shall, without his consent, be deprived of water for household or domestic use, or for the purpose of watering his stock, or of water necessary to irrigate crops growing upon such lands, and actually used therefor."
All the appropriations involved in this proceeding were made under the authority of the last-mentioned act, but no action or proceeding, by condemnation or *Page 231 otherwise, was taken by any appropriator to acquire any of the riparian rights of the Power Company.
The above-quoted section of the acts was amended (Laws 1901, p. 136), in respect to the procedure to be followed in the condemnation of riparian rights, but all the matter above quoted was retained in the section as amended.
An act of the legislative assembly, approved February 20, 1895 (Laws 1895, p. 13), provided for the organization of irrigation districts, and authorized such districts, when organized, to acquire water rights and irrigation works by appropriate legal means. The concluding section of the act contained the following provisions:
"Nothing herein contained shall be deemed to authorize any person or persons to divert the waters of any river, creek, stream, canal or ditch from its channel, to the detriment of any person or persons having any interest in such river, creek, stream, canal or ditch or the waters therein, unless previous compensation be ascertained and paid therefor, under the laws of this state, authorizing the taking of private property for public uses."
In 1899 the legislature enacted a statute further authorizing the appropriation of surplus water from streams flowing over and through private lands, and the diversion of the water so appropriated at points upon such private lands: Laws 1899, p. 172. Section 1 of that act provided:
"That the use of the water of the lakes and running streams of the State of Oregon for the purpose of developing the mineral resources of the state and to furnish electrical power for all purposes is declared to be a public and beneficial use and a public necessity, and the right to divert unappropriated *Page 232 waters of any such lakes or streams for such public and beneficial use is hereby granted."
Section 3 of the act, after authorizing persons, or companies and corporations organized for the purposes named in Section 1 of the act, to appropriate and divert waters from any lake or running stream within the state and to condemn right of way for ditches, canals, flumes and pipe-lines for the carrying of the same, contained the following clause:
"* * and may condemn the rights of riparian proprietors upon the lake or stream from which such appropriation is made, upon complying with the terms of this act."
It was provided in Section 9 of the act —
"Such persons, companies and corporations may also maintain an action for the condemnation and appropriation of the right to the flow of water in any stream from which it proposes to divert water below the point of diversion vested in the owners of lands lying contiguous to such stream by virtue of their location."
The statutes above referred to are the only legislative enactments adopted prior to 1909 which in any way affect the rights of riparian proprietors then and previously existing, and as above noted, all those acts expressly preserve such rights and require a resort to the power of eminent domain for their divestiture without the owner's consent. None of the legislative provisions mentioned attempt to define the character or extent of riparian rights, but obviously the protection of the statutes extended to and included all those rights recognized in the decisions of this court as belonging to riparian proprietors. *Page 233
Clearly, then, the statutes above referred to and the cases decided by this court up to and including 1908, and which have been examined in the preceding pages, confirm the statement of Mr. Justice BEAN in Eastern Or. Land Co. v. Willow River L. Irr. Co., supra, that "the general doctrine of riparian rights is too firmly established in this state to be shaken now by judicial decision."
Leaving out of consideration the statute adopted by the legislature in 1909, known as the "Water Code" (Laws 1909, Chap. 216), and the statute passed at the same session declaring waters in the lakes and running streams of the state to be public property (Laws 1909, Chap. 221), hereinafter discussed, the unavoidable conclusion to be deduced from those decisions is that, as against a subsequent appropriator claiming the right to water for irrigation of nonriparian lands, a riparian proprietor, in the absence of grant, license or prescription limiting his rights, is entitled to the ordinary and usual flow of a stream to the extent that the water thereof may be applied presently or prospectively to beneficial uses upon the riparian lands, and that such rights of the riparian owner are part and parcel of the land and are not lost by nonuser nor by use adverse thereto short of the prescriptive period. That is the rule established by the courts of last resort of California and Washington, where the conditions are similar to those which obtain in this state, and where the history and development of the law relating to water rights and the use of water has been almost identical with the like history and development of that law in this state: AnaheimU.W. Co. v. Fuller, 150 Cal. 327 (88 P. 978, *Page 234 11 L.R.A. (N.S.) 1062); Duckworth v. Watsonville W. L. Co.,150 Cal. 520 (89 P. 338); Miller Lux v. Madera Canal Irr. Co., 155 Cal. 59 (99 P. 502, 22 L.R.A. (N.S.) 391);Mentone Irr. Co. v. Redlands E.L. P. Co., 155 Cal. 323 (100 P. 1082, 17 Ann. Cas. 1222, 22 L.R.A. (N.S.) 382); Rigney v.Tacoma L. W. Co., 9 Wash. 576 (38 P. 147, 26 L.R.A. 425);Benton v. Johncox, 17 Wash. 277 (49 P. 495, 61 Am. St. Rep. 912, 39 L.R.A. 107); City of New Whatcom v. Fair Haven LandCo., 24 Wash. 493 (64 P. 735, 54 L.R.A. 190); Bernot v.Morrison, 81 Wash. 538 (143 P. 104, Ann. Cas. 1916D, 290);Brown v. Chase, 125 Wash. 542 (217 P. 23), in which the earlier cases decided by that court are collected; Kinney on Irrigation Water Rights (2 ed.), § 853; Wiel on Water Rights in the Western States (3 ed.), §§ 743, 744, 815.
The riparian lands of the Power Company constitute two power sites upon Hood River, both located several miles below the several points of diversion of the claimants to water by appropriations made subsequent to the time that the riparian rights incident to the lands of the Power Company accrued and became vested. Hood River runs through one of the power sites (the lower) owned by the company for a distance of more than two and one-half miles and has a fall thereon of more than twenty-eight feet; the situation of the land and the fall of the water thereon renders it practicable to utilize 750 cubic feet per second of the flow of the river for the advantageous development of power upon the riparian lands. Hood River runs through the lands embraced in the upper power site owned by the Power Company for a distance of between four and five miles, and has a fall thereon of 252 feet *Page 235 rendering it practicable to utilize, for the development of power, 750 cubic feet per second of the flow of the river — a quantity equal to or exceeding the volume of water in the river in August and part of July and September of each year.
The right to use the water of Hood River to develop the power mentioned was incident to the land, and part and parcel thereof (Wiel on Water Rights in the Western States (3 ed), § 815; Kinney on Irrigation Water Rights (2 ed.), § 853), and the proprietor of the land could not be deprived of that right except by grant, license, condemnation or prescription.
Such was the situation of fact and law existing and well known in 1895 and thereafter, at the time notice of intention to appropriate the waters of Hood River for the irrigation of nonriparian lands was given by each of the claimants whose claims the power company is contesting in this proceeding.
The appropriators relied upon the legislative act (Laws 1891, p. 52), as their authority for making the appropriations claimed by them respectively. That act expressly excluded from such appropriation waters, the title and right to the use of which was vested in riparian proprietors, but authorized any qualified corporate appropriators desiring to acquire such riparian rights, without the consent of the owner to condemn the same. None of the appropriation claimants in this proceeding at any time attempted to condemn the riparian rights incident to the lands of the Power Company or to acquire the same, or any interest therein, by negotiation and conveyance, and no estoppel or license is claimed.
No appropriator, party to this appeal, actually diverted water from Hood River and thereby invaded *Page 236 the rights of the Power Company prior to 1901, and such diversions made prior to 1905 did not amount to any considerable quantity — the Power Company says 1,100 miner's inches diverted by the East Fork Irrigation District and its predecessors.
To initiate title to the use of water by adverse user, as against a riparian owner, there must be a hostile invasion of the rights of the latter to use the water, asserted in such a way that the owner may know of the claim, and adverse title can only arise where such adverse use has been exclusive, continuous and uninterrupted under a claim of right for ten years: Bowman v.Bowman, 35 Or. 279, 283 (57 P. 546); Carson v. Hayes,39 Or. 97 (65 P. 814); Oregon Construction Co. v. Allen DitchCo., 41 Or. 209, 216 (69 P. 455, 93 Am. St. Rep. 701); Britt v. Reed, 42 Or. 76, 83 (70 P. 1029, 1030); Davis v.Chamberlain, 51 Or. 304 (98 P. 154); Ison v. Sturgill,57 Or. 109, 118 (109 P. 579, 110 P. 535); Cantrall v.Sterling Min. Co., 61 Or. 516, 524 (122 P. 42).
Neither mere notice of intention to appropriate water, the right to use which is vested in a riparian proprietor, nor preparation to divert the water claimed will initiate a right thereto by adverse use. Nothing short of an actual diversion that constitutes an invasion of the riparian owner's rights will operate to start the statute running: Turner v. East SideCanal Irr. Co., 169 Cal. 652 (147 P. 579); Pabst v.Fimond, 190 Cal. 124 (211 P. 11).
In Turner v. East Side Canal Irr. Co., the court said:
"A mere claim cannot establish a prescription. * * Such owner (riparian) has a present vested right before the appropriation begins, and his right *Page 237 cannot be divested by the mere assertion of an intention to claim the water, nor by posting notices of appropriation or beginning work in pursuance thereof, nor even by the actual diversion for less than five years, with a view to a future public use, if the water is in the meantime wasted, or not applied to public or beneficial use."
The statutory period of prescription in California is five years.
This litigation was instituted on the twenty-fifth day of May, 1915, as to the East Fork Irrigation District, and on September 29, 1916, as to the other claimants herein. Therefore no claim herein to the use of water by prescription can be sustained which was not initiated by an invasion of the rights of the Power Company more than ten years prior to the date that this litigation was instituted as to those asserting such adverse claims.
No support can be found in the decisions of this or any other state wherein the so-called modified doctrine of riparian rights is recognized, for the contention that vested and accrued riparian rights to the use of water for power purposes are lost by mere nonuser: Kinney on Irrigation Water Rights (2 ed.), §§ 743, 744, 815.
"Riparian rights cannot be lost by abandonment, wherein they differ in an essential element from appropriations. The latter depend on continued beneficial use; but in the riparian right, future possible use stands as high as actual present use. Riparian rights remain both against other riparian owners and against nonriparian owners, though the water is put to no use at all." Wiel on Water Rights in the Western States (3 ed.), § 861.
In some jurisdictions in which common-law riparian rights upon non-navigable streams are recognized, *Page 238 legislation and judicial decision disclose a tendency to limit those rights as follows: 1. The right of the riparian owner to the undiminished flow of the stream includes the quantity of water which presently or prospectively might be beneficially utilized without waste upon the riparian lands and no more, the excess, if any, being subject to appropriation; and 2. The riparian owner who has never made any beneficial use of the water to which he is entitled cannot maintain an action for damages for a diversion that invades his rights, and unless he proposes and is prepared to put his water to a beneficial use in the immediate future, he will not be granted an injunction in such a case, relief in both instances being denied because of the absence of actual damage: Kinney on Irrigation Water Rights (2 ed.), §§ 816, 820.
The limitations mentioned fall far short of denying or destroying the vested rights of the riparian owner; they operate merely to withhold the power of the court to stay the running of the statute of limitations and to prevent title by prescription in such cases.
In the instant case there was not a total want of user of the rights incident to the riparian lands. Power had been developed upon the lands of the upper site owned by the Power Company even prior to any notice of appropriation, and the Power Company at the time of the first diversion by any of the appropriation claimants was applying 140 cubic feet per second of the water of the stream to the development of power upon the lands of its lower power site, and was planning further extensive and expensive power development upon both power sites. *Page 239
The statutes under which notices of intention to appropriate were given, as well as numerous decisions of this court, expressly notified those contemplating the diversion of water from the river that the right to the flow of the water of the stream was vested in the owners of lands lying below the proposed points of diversion and contiguous to such stream by virtue of their location, and that the waters to which such right attached were not subject to appropriation, and pointed out to such intending appropriators, that if they desired to appropriate any waters embraced in such rights, they must condemn the right thereto: Laws 1891, § 8, pp. 52, 54. That right of condemnation has existed in favor of the appropriators continuously since notice of appropriation was given, but advantage has not been taken thereof. It is probable that the riparian rights mentioned had but small value prior to the time that the Power Company had expended large sums thereon in the development of power and might have been acquired by condemnation at a comparatively small cost. Having seen fit to reject the course pointed out by the statute and to ignore vested property rights mentioned therein which might conflict with their proposed use of the waters of the stream, the appropriators are not now in a favorable position to complain when those rights have arisen to plague them.
In Miller Lux v. Madera Canal Irr. Co., supra, the court, speaking of the obligation of an appropriator to condemn riparian rights in a situation analogous to the one under discussion, said:
"As against an appropriator who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion which will deprive *Page 240 him of the customary flow of water which is or may be beneficial to his land. * *
"It is argued that, unless appropriators are permitted to divert and store for future use water which would otherwise run into the sea and be wasted, there will be a failure to make the most beneficial use of the natural resources of the state, and that riparian owners should not be permitted to obstruct the development of these resources. * * But the riparian owners have a right to have the stream flow past their land in its usual course, and this right, so far as it is of regular occurrence and beneficial to their land, is, as we have frequently said, a right of property, `a parcel of the land itself.' Neither a court nor the legislature has the right to say that because such water may be more beneficially used by others it may be freely taken by them. Public policy is at best a vague and uncertain guide, and no consideration of police can justify the taking of private property without compensation. * * The argument that these waters are of great value for the purposes of storage by appropriators and of small value to the lower riparian owners defeats itself. If the right sought to be taken be of small worth, the burden of paying for it will not be great. If, on the other hand, great benefits are conferred upon the riparian lands by the flow, there is all the more reason why these advantages should not, without compensation, be taken from the owners of these lands and transferred to others."
In Weiss v. Oregon Iron Co., supra, the argument alluded to in the above quotation was rejected by this court in terms equally as emphatic and convincing as those used by the California court (page 501 of the opinion); and again in Kamm v. Normand, supra, answering the same argument, Mr. Chief Justice BEAN, speaking for the court, said:
"It is often the case that the public good would be subserved by taking one man's property for the *Page 241 benefit of the community; but as already quoted from Judge COOLEY, `it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public.'"
This brings us to a consideration of the Water Code (Chap. 216, Laws 1909, and Chap. 221, Laws 1909; Or. L., §§ 5685-5717). The adoption of those statutes was influenced by the officials of the United States Reclamation Service, and was designed to abolish riparian rights in this state in so far as constitutional inhibitions would permit, and to substitute therefor the rules governing water and water rights in Wyoming, Colorado and other states which early rejected the common-law doctrine of riparian rights: Wiel on Water Rights in the Western States (3 ed.), § 124. The provisions of those statutes material to the question under discussion are:
"All water within the state from all sources of water supply belong to the public." Or. L., § 5715.
"Nothing in this act contained shall impair the vested right of any person, association or corporation to the use of water." Subd. 1, § 5717.
"Actual application of water to beneficial use prior to the passage of this act by * * any riparian proprietor, or by or under authority of his or its predecessors in interest, shall be deemed to create in such riparian proprietor a vested right to the extent of the actual application to beneficial use." Subd. 2, § 5717.
"And where any riparian proprietor, * * shall, at the time this act is filed in the office of the secretary of state, be engaged in good faith in the construction of works for the application of water to a beneficial use, the right to take and use such water shall be *Page 242 deemed vested in such riparian proprietor; provided, such works shall be completed and said water devoted to a beneficial use within a reasonable time after the passage of this act." Subd. 3, § 5717.
"This act shall not be held to bestow upon any person, association or corporation, any riparian rights where no such rights existed prior to the time this act takes effect." Subd. 8, § 5717.
It will be noticed that the foregoing provisions, while expressly prohibiting a construction of the act that would impair any vested right to the use of water, at the same time attempted to limit the vested rights of riparian proprietors to those cases where at the time of the passage of the act, the riparian proprietor had, (1) applied water to a beneficial use, and to the extent of such application, or (2) was engaged in good faith in the construction of works for such application.
If it were permissible to give full effect to the above-mentioned limitations of the statute, the Power Company is entitled to priority over the appropriators to the extent of 140 second-feet that it was applying to beneficial use at the time the Water Code was adopted, and possibly to the extent of 640 second-feet, as the record indicates that the predecessor of the Power Company was then engaged in good faith in the construction of works for the use of the last-named quantity of water for the development of power. But, upon well-settled principles, it was beyond the power of the legislature to abridge or abrogate riparian rights that had accrued and become vested prior to the passage of the act.
In his valuable work on Irrigation and Water Rights (2 ed.), Mr. Kinney, who frankly expresses a preference for the Colorado rule, states the result of his examination of the cases as follows: *Page 243
"§ 816. Many of the states and territories of the West, upon the theory that the common law rule was inapplicable to their condition, by constitutional provisions, statute, or by court decisions, entirely abrogated riparian rights, as they had the power to do, and in lieu thereof adopted the Arid Region Doctrine of appropriation. The adoption of the new rule could not and did not have the effect of abolishing riparian rights which had already accrued and vested, but only prevented the acquisition of such rights in the future. The substitution of the law of appropriation, instead of the common law rule of riparian ownership, is applicable only to those waters in the state which are unappropriated; or, in other words, which have not become the property of riparian proprietors."
In an earlier section the author says:
"§ 389. It is generally conceded, however, that the adoption of a constitutional or legislative provision making all the flowing streams and other waters forever the property of the public, or State, will not be held to have destroyed riparian rights, which had vested prior to the passage of such provision. As was held in the case of Crawford Co. v. Hall, the legislative enactment to this effect did not have the result of abolishing vested rights of riparian proprietors, but affected only such rights as might have been acquired in the future under the law as theretofore existing. To hold otherwise would be to hold that one could be deprived of his property without due process of law, which would be in direct conflict with the Federal Constitution, that great safeguard of the rights of property, as against legislative encroachment."
In support of the foregoing text the author cites the following cases: Biglow v. Draper, 6 N.D. 152 (69 N.W. 570); McGheeIrr. D. Co. v. Hudson, 85 Tex. 587 (22 S.W. 398); Barrett v.Metcalf, *Page 244 12 Tex. Civ. App. 247 (33 S.W. 758); Crawford Co. v. Hathaway,67 Neb. 325 (93 N.W. 781, 108 Am. St. Rep. 647, 60 L.R.A. 889);Meeng v. Coffey, 67 Neb. 500 (93 N.W. 713, 108 Am. St. Rep. 697, 60 L.R.A. 910); Lux v. Haggin, 69 Cal. 255 (4 P. 919, 10 P. 674); Rossmiller v. State, 114 Wis. 169 (89 N.W. 839, 91 Am. St. Rep. 910, 58 L.R.A. 93); Nielson v. Sponer,46 Wash. 14 (89 P. 155, 123 Am. St. Rep. 910); Nesalhous v.Walker, 45 Wash. 621 (88 P. 1032); Colorado Mill El. Co. v. Larimer, 26 Colo. 47 (56 P. 185); Armstrong v. LarimerCounty D. Co., 1 Colo. App. 49 (27 P. 235); Farm Invest. Co. v. Carpenter, 9 Wyo. 110 (61 P. 258, 87 Am. St. Rep. 918, 50 L.R.A. 747).
The expressions of this court are to the same effect: PringleFalls v. Patterson, 5 Or. 474 (128 P. 820, 132 P. 527);In re Willow Creek, 74 Or. 592, 616 (144 P. 505, 146 P. 475).
In the latter case, Mr. Justice BEAN, referring to the Water Code, said:
"The first section of the act declares that nothing therein contained shall be so construed as to take away or impair the vested right of anyone to any water; and Section 70, subdivision 1, is to the same effect. Any appropriation of water under the provisions of the act is thereby made subject to such condition. In the absence of such legislative announcement the lawmakers have no power to destroy such a right. The main purpose of the law is to protect water rights and to promote the utilization of the same. The right to the use of water is a valuable property right guaranteed to every citizen. It cannot be arbitrarily nor unreasonably interfered with by the legislative department of the state."
It is thus clear that the riparian rights of the Power Company could not be, and were not, extinguished or impaired by the statutes mentioned. *Page 245
Finally, the Water Board and the lower court denied priority to the riparian rights of the Power Company, upon the ground that the form of claim filed by the Power Company in this proceeding presented for adjudication a claim for a definite and fixed amount of water and constituted it a claimant by appropriation and not as riparian owner. That determination was based upon decisions of this court holding that a riparian proprietor who claims an exclusive right to water as an appropriator from a stream flowing through his lands, and proposes to maintain his asserted claim against all comers, thereby waives his riparian rights; In re Sucker Creek, 83 Or. 228, 234 (163 P. 430), where all the earlier decisions are collected and cited.
The statement of claims of the Power Company in the instant case do not bring it within the rule established by the decisions above cited.
The statute providing for the adjudication of the relative rights of the various claimants to the waters of a stream requires that each claimant shall set forth and state his claim in writing under oath upon a blank form furnished by the Water Superintendent, which statement in writing shall contain all the particulars necessary for the determination of his rights to the waters of the stream to which he lays claim: Or. L., § 5734.
The statute also required the claimant to power rights to pay certain designated fees at the time of submitting proof based upon the theoretical horse-power which he claims the right to develop by the use of water from the stream: Or. L., § 5737.
The form supplied by the superintendent and which the claimant is required to use contains questions which the claimant must answer in writing under *Page 246 oath upon submitting his claim. The statements of its claims herein were made by the Power Company on such forms; an examination of those statements shows the following questions and answers:
(Lower Development.) "3. Q. What is the nature of the right or use on which this claim to the waters of said stream is based? A. Riparian ownership. See Exhibit `A.'
"4. Q. How was such right initiated, or upon what is it based? A. Right is based upon ownership of riparian rights. See Exhibit `A' attached hereto and made a part hereof.
"5. Q. State the date of the initiation of such water right? A. See Question 6.
"6. Q. What steps were taken by this claimant or his predecessor in interest to initiate said right? Answer fully, attaching separate sheet if necessary. A. The right to the waters was acquired with the lands, and passed by mesne conveyances from the United States to claimant. See Exhibit `A' attached hereto and made a part hereof. * *
"23. Q. If water is used for power, state the total fall utilized and the theoretical (not actual) horse-power developed. A. Present development utilizes 140 second-feet at 46 feet head, giving 730 theoretical horse-power. Proposed and partly constructed extensions utilize 750 second-feet at 120 feet head, giving 10,227 theoretical horse-power."
(Upper Development.) "3. Q. What is the nature of the right or use on which this claim to the waters of said stream is based? A. Riparian ownership. See Exhibit `A.'
"4. Q. How was such right initiated, or upon what is it based? A. The right is based upon ownership of riparian rights. See said Exhibit `A.'
"5. Q. State the date of the initiation of such water rights? A. See Question 6. *Page 247
"6. Q. What steps were taken by this claimant or his predecessor in interest to initiate said right? Answer fully, attaching separate sheet if necessary. A. The right to the waters was acquired with the lands, and passed by mesne conveyance from the United States to claimant. See Exhibit `A' attached hereto and made a part hereof. * *
"23. Q. If water is used for power, state the total fall utilized and the theoretical (not actual) horse-power developed. A. The present development utilizes 640 second-feet at 28 feet head, giving 2,036 theoretical horse-power. Proposed extensions utilize 750 second-feet at 252 feet head, giving 21,477 theoretical horse-power."
In Exhibit "A," referred to in the foregoing answers, the Power Company in each case reasserted its claim to waters as a riparian proprietor, and as the basis for such claim specifically described the lands through which the stream flows, and to which its riparian rights are incident, and set forth the dates of the several grants and conveyances whereby title thereto became vested in the Power Company. Throughout the statements of claim the Power Company emphasized its reliance upon its riparian ownership of the lands, and only referred to or used definite quantities of water used by it, or which it proposed to use, in response to the requirements of the statute and the exaction of the Water Superintendent.
Under no rule of interpretation fairly applied can the statements of the Power Company be construed as claims to the use of water based upon appropriation. It was compelled by the statute to designate the amount of water it proposed to use, in order to secure recognition and adjudication of its rights:Pacific Livestock Co. v. Cochran, 73 Or. 417 *Page 248 (144 P. 668). Under the facts of this case, its compliance with that requirement properly cannot be construed as a waiver or abandonment of its riparian rights.
The decree of the Circuit Court should be modified in accordance with the controlling principles above set forth, as they are further explained and applied to the facts of this case in the admirable opinion of Mr. Justice BURNETT.
Mr. Justice BROWN concurs in the dissent.