Re Determination of Water Rights of Hood River.

The following opinion applies to the relative rights of the Pacific Power Light Company. There is no difference of opinion among the members of the court regarding the relative rights of the other litigants. The determination of the relative rights of the Pacific Power Light Company hinges upon the validity of the act of 1909, known as the Water Code and designated as Chapter III, Title XXXIII of Oregon Laws. The pertinent portions of that Chapter are as follows:

Section 5715: "All water within the state from all sources of water supply belong to the public."

Section 5716: "Subject to existing rights, all waters within the state may be appropriated for beneficial use, as herein provided, and not otherwise; but nothing herein contained shall be so construed as to take away or impair the vested right of any person, firm, corporation, or association to any water; * *."

Section 5717, as amended in the General Laws of 1923, Chapter 283, reads as follows:

"1. Nothing in this act contained shall impair the vested right of any person, association or corporation to use the water.

"2. Actual application of water to beneficial use prior to the passage of this act by or under authority of 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 *Page 194 use; provided such use has not been abandoned for a continuous period of two years.

"3. And where any riparian proprietor, or under authority of any riparian proprietor or his or its predecessor in interest, any person or corporation 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 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. The state engineer, in the matter hereinafter provided, shall have power and authority to determine the time within which such water shall be devoted to a beneficial use. The right to water shall be limited to the quantity actually applied to a beneficial use within the time so fixed by the state engineer." General Laws of 1923, pp. 439, 440.

The other provisions of said Chapter provide for determining the relative rights, either initiated or vested. The legislature intended by this act to confine vested riparian rights to the use of water, either already applied to a beneficial use, or in the process of being so applied, when that act took effect. The legislature intended to modify the doctrine of riparian rights as theretofore announced and prescribed both by the prior statutes of this state and the judicial utterances of this court. If the legislature had the power to so define, limit and prescribe the use of water, then the common-law doctrine of riparian rights as to continuous flow has been abolished.

The able and exhaustive opinion of Mr. Justice McCOURT is accepted by the writer as the correct statement of the doctrine of riparian rights as the same existed in the state prior to 1909 when the *Page 195 Water Code was adopted. The able opinion of Mr. Justice LORD inWeiss v. Oregon Iron Steel Co., 13 Or. 496, 498 (11 P. 255), defines the doctrine of riparian rights, as commonly and generally understood by the members of the bar, as well as the courts at that time, as clearly and lucidly as can be found anywhere. He defines riparian rights in that case as follows:

"The general doctrine relating to watercourses is, that every proprietor is entitled to the use of the flow of the water in its natural channel, 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 senddown to his neighbor below as much as he received from hisneighbor above. (Angell on Watercourses, §§ 90, 94.) `As a general proposition, every riparian proprietor has a natural and equal right to the use of the water in the stream adjacent to his land, without diminution or alteration.' (Washburn on Easements, 319.) `Riparian proprietors are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration.' (Gould on Waters, § 204.) Chancellor KENT says: `Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel, when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish thequantity of water which would otherwise descend to the proprietors below.' (3) Kent's Com., § 439.) * * The right to a watercourse begins ex jure naturae, and having taken a certain course naturally, it cannot be diverted to the deprivation of the rights of the riparian owners below. This is the language of all the common-law text-books, and the decision. (Angell on Watercourses, § 93.) *Page 196 `It is an ancient and well-established principle,' said WESTON, J., `that water cannot be lawfully diverted, unless it is returned again to its accustomed channel, before it passes the land of the proprietor below. Running water is not susceptibleof an appropriation which will justify the diversion orunreasonable detention of it.' (Blanchard v. Baker, 9 Greenl. 266.) `The general rule of law is, that every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration.' (Lord ELLENBOROUGH in Healy v. Shaw, 6 East, 208, 214.)

"By settled principles of both the civil and common law, the riparian owner has a usufruct in the stream as it passes over his land, of which he cannot be deprived by mere diversion." (Pope v. Kinman, 54 Cal. 3.)

This decision as so ably pointed out by Mr. Justice McCOURT has been repeatedly cited and followed and may be said not only to state the law of riparian rights in this state clearly, but may also be considered the leading case in this state upon that doctrine. Further citation of authorities would be unnecessary repetition without contributing anything of value to the reasons for the conclusions of the writer. The doctrine of riparian rights as thus laid down has been held to be a vested property right: Brown v. Baker, 39 Or. 66 (65 P. 799, 66 P. 193);Oregon Construction Co. v. Allen Ditch Co., 41 Or. 209 (69 P. 455, 93 Am. St. Rep. 701); Anaheim U.W. Co. v. Fuller,150 Cal. 327 (86 P. 978, 11 L.R.A. (N.S.) 1062, and other cases cited in the same paragraph in the opinion of Mr. Justice McCOURT.

"This right of the riparian proprietor to the flow of the water is inseparably annexed to the soil, and passes with it not as a mere easement or appurtenant, but as a part and parcel of it. Use does not create, *Page 197 and disuse cannot destroy or suspend it. It is a private property right in the proprietor within the protection of the constitutional provision that private property shall be forever held inviolate, subject to the public welfare, and shall not be taken for public use without compensation being first made. The property consists, not in the water itself, but in the added value which the stream gives to the land through which it flows. This is made up of the power which may be obtained from the flow of the stream, from the increased fertility of the adjoining fields because of the presence of the water, and of the value of the water for the uses to which it may be put. The right to the continued existence of these conditions is property, to protect which the owner may resort to any or all of the instrumentalities which may be employed for the protection of private property rights." 27 R.C.L. 1092, 1093, § 30, and cases cited in note 6, page 1092, and in note 7, page 1093; 1 Kinney on Irrigation and Water Rights (2 ed.), §§ 450-551; § 588, p. 1012; Clark v.Allaman, 71 Kan. 206 (80 P. 571, 70 L.R.A. 971, 985).

If this court should adhere to the doctrine of riparian rights as thus expounded, no water could be diverted from our streams against the will of a riparian owner unless the right to so divert it has been acquired by condemnation, grant, license or prescription. Not only did the courts enforce common riparian rights because the common law obtained in this state, except as modified by state statute, but the legislature of the state jealously guarded and protected the same rights, as is very thoroughly pointed out by Mr. Justice McCOURT in his dissenting opinion.

Climatic, meteorological and topographical conditions have caused a departure from the riparian doctrine of the common law in all of the Rocky *Page 198 Mountain and western states. In some of these states, namely, Arizona, Colorado, Idaho, Montana, Nevada, Utah and Wyoming, the common-law doctrine has been abrogated either by the Constitution or legislative enactment. In some of these states the courts have refused to apply the common-law doctrine of riparian rights because that doctrine was inapplicable to the physical conditions. In other states an attempt has been made to do the impossible and reconcile the two opposing doctrines concerning the right to and use of the waters of the state. These two systems are so inconsistent with each other that they cannot be reconciled. The doctrine of appropriation is directly opposed in practice and principle to the common-law doctrine of riparian rights. The most that can be said with reference to the two systems in those states, which have not abrogated the doctrine of the common law, is that they stand side by side. The fact, however, that some of the states have altogether abrogated the common-law doctrine of riparian rights is convincing to the mind of the writer that the common-law doctrine of riparian rights is not such a vested property right as is protected by the constitutional guaranty. It must be borne in mind, in this connection, that all of these western states adopted the common law as their system of jurisprudence. Having done that, some of the early decisions held the common-law doctrine of riparian rights obtained and the appropriation of the water was not permitted. The doctrine of appropriation was held in Bear RiverWater Co. v. New York M. Co., 8 Cal. 327 (68 Am. Dec. 325, 4 Morr. Min. Rep. 526), to be "without judicial or legislative precedent, either in our own country or in that from which we have borrowed our jurisprudence." *Page 199

"In the early history of the doctrine, however, attempts were made in some of the California decisions to reconcile the doctrine of appropriation with the common law. But, for the reason that the very fundamental principles of the two doctrines are opposed to each other, this attempt at reconciliation did not get very far.

"About the most that can be said of the two doctrines is that they may both exist in the same state at the same time; but even then they are continually clashing." 1 Kinney on Irrigation and Water Rights (2 ed.), 1010, 1011.

"In 1861, while Nevada was still a territory, the common law of England was adopted by the legislature, in the following language: `The common law of England so far as it is not repugnant to or inconsistent with the constitution or laws of the United States, or the laws of the territory of Nevada, shall be the rule of decision in all courts of this territory.' And when Nevada became a state the above enactment was adopted in the constitution by the following clause: `All laws of the territory of Nevada in force at the time of the admission of this state, not repugnant to this constitution, shall remain in force until they expire by their own limitations or be altered or repealed by the legislature.' It will be noticed that the section is entirely silent upon the subject as to the applicability or non-applicability of the common law, or any portion thereof, to the conditions or necessities of the state of Nevada. And, when the question was first considered by the supreme court of the state in the case of Vansickle v. Haines [7 Nev. 249, 15 Morr. Minn. Rep. 201], the court in upholding the common law rule of riparian rights according to the strict construction thereof, after quoting the section of the statute above, said: `Hence, although the common law might, in the opinion of judges, be inapplicable, still, if not in conflict with the constitutional laws of the United States or the constitution or laws of *Page 200 Nevada it must nevertheless be enforced.' Later the same court in the cases of Jones v. Adams [19 Nev. 78, 6 P. 442, 3 Am. St. 788, 4 L.R.A. 60], without any further enactment upon the part of the legislature of that state, overruled the case ofVansickle v. Haines upon the only ground that the common law of riparian rights was unsuited to the physical conditions of that state, and they were thereby entirely abrogated, and the arid region doctrine of appropriation of waters for beneficial uses was adopted in lieu thereof. These decisions upon the part of the court in the later cases have been called by an eastern writer upon the subject, in a somewhat hysterical manner, `one of the most flagrant examples of judicial legislation that was ever perpetrated.' But in view of the authorities cited in the previous sections, the court had this power; and owing to the fact that Nevada is one of our most arid states, the physical conditions of which are such that the common law of riparian rights is entirely inapplicable, as it was construed in the Vansickle case, it will have to be admitted, by all who are at all familiar with the subject, that it was better for the court to reverse its holding, than to persist in adhering to a wrong rule. * *

"Again, this doctrine was reaffirmed in the case of RenoSmelting, Milling Reduction Works v. Stevenson [20 Nev. 269,21 P. 317, 19 Am. St. Rep. 364, 4 L.R.A. 60], wherein it was said: `It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law, when that reason utterly fails — Cessante ratione legis, cessat ipsa lex. In states where the common law has not been adopted by legislative enactment, courts have proceeded upon the hypothesis of its adoption, subject always to its applicability to thelocality. From these authorities we assume that the applicability of the common law rule to the physical characteristics of the state should be considered. Its inapplicability to the Pacific States, as shown in *Page 201 Atchison v. Peterson [1 Mont. 561; Id., 87 U.S. 20 Wall.22 L. Ed. 414, 1 Morr. Min. Rep. 582] applies forcibly to the state of Nevada. Here the soil is arid and unfit for cultivation, unless irrigated by the waters of running streams. The general surface of the state is table land, traversed by parallel mountain ranges. The great plains of the state afford natural advantages for conducting water, and lands otherwise waste and valueless become productive by artificial irrigation. The condition of the country and the necessities of the situation impelled settlers upon the public lands to resort to the diversion and use of waters. This fact of itself is a striking illustration and conclusive evidence of the inapplicability of the common-law rule.'" 1 Kinney on Irrigation and Water Rights (2 ed.), 1020-1023.

To a large degree the State of California has abrogated the common-law doctrine of riparian rights. Mr. Justice SHAW, whose learning and long experience upon the supreme bench of the State of California entitles his opinion to especial respect in regard to water rights, in Katz v. Walkinshaw, 141 Cal. 116 (70 P. 663, 74 P. 766, 99 Am. St. Rep. 35, 64 L.R.A. 236), said:

"Whenever it is found that, owing to the physical features and character of this state, and the peculiarities of its climate, soil, and productions, the application of a given common law rule by our courts tends constantly to cause injustice and wrong, rather than the administration of justice and right, then the fundamental principles of right and justice on which the law is founded, and which its administration is intended to promote, require that a different rule should be adopted — one which is calculated to secure persons in their property and possessions, and to preserve for them the fruits of their labors and expenditures. The question whether or not the rule contended for is a part of the common law applicable *Page 202 to this state depends on whether it is suitable to our conditions under the rule just stated."

In a recent decision of the Supreme Court of California, that court modified its former views as to the flow of surface streams and held that a riparian owner must show some damage in order to restrain an upper owner from the beneficial use of the water and said:

"Even if at common law or under the civil law it was a part of the usufructuary right of the riparian owner to have the water flow by for no purpose other than to afford him pleasure in its prospect, such is not the rule of decision in this state. The lower claimant must show damage to justify a court of equity in restraining an upper claimant from his beneficial use of the water. The fair apportionment and economic use of the waters of this state are of the utmost importance to its development and well-being. The problems presented never came within the purview of the common law. They have been a necessity, therefore, and must continue to be solved by this court as cases of first impression, and, as in the past, or in the future if a rule of decision at common law shall be found unfitted to the radically changed conditions existing in this state so that its application will work wrong and hardship rather than betterment and good, this court will refuse to approve and follow the doctrine." SanJoaquin etc. Co. v. Fresno etc. Co., 158 Cal. 626 (112 P. 182, 35 L.R.A. (N.S.) 832).

There can be no question that the excerpt last quoted is in direct conflict with the principle announced in Weiss v.Oregon Iron Steel Co., 13 Or. 496 (11 P. 255), and in direct conflict with the common-law doctrine of riparian rights. California has adhered tenaciously to that doctrine as a general rule and yet its Supreme Court exercises the right to modify that doctrine. This it could not do *Page 203 if the common-law riparian rights were vested property. The Constitution of the western states could not abrogate riparian rights if they were vested property. Legislative enactment could not abrogate riparian rights if they were vested property. It must be remembered that if riparian rights as known to the common law and defined in Weiss v. Oregon Iron Steel Co., 13 Or. 496 (11 P. 255), were vested property, to abrogate them would be to violate the federal Constitution protecting vested property. The people can no more violate the federal Constitution by their Constitutions than their representatives can by legislative enactment.

The state courts cannot violate the federal Constitution. It cannot be doubted that numerous persons had settled upon the streams of the western states, and thereby acquired riparian rights prior to the decisions of the courts referred to above, prior to the adoption of the Constitutions of the several western states, and prior to the legislative enactments referred to. It cannot be doubted that where riparian owners had exercised their rights to apply the water to a beneficial use they thereby secured a vested property right, which was protected in all these states. But the decisions referred to, as well as the constitutional provisions and legislative enactments, also conclusively show that riparian rights, not utilized by a beneficial application of the water, were not vested rights. If the doctrine of riparian rights, under the common law, vested a valuable property in the riparian owner, grantees of the United States would be protected in the enjoyment of that right, under the constitutional guaranty, against the impairment of contracts. Every riparian owner, to a certain extent, has a vested property right. By being *Page 204 the owner of the bank, he has access to the water and to its use for any lawful purpose. To the extent he has used it, that use of it is a vested property. To that extent, it may be said he has applied the water to a beneficial use. It may be truthfully said, to that extent, he has appropriated the water. The use of water, therefore, has become a vested, fixed and valuable property right. The doctrine of the Dartmouth College Case, 17 U.S. (4 Wheat.) 518 (4 L. Ed. 629, see, also, Rose's U.S. Notes), protects such property against the invasion by the state either acting through its Constitution, legislative enactments, or judicial decisions. The right to have the water flow by and through his premises, undiminished in quantity and unimpaired in quality, in the opinion of the writer, is not such a vested property.

The case of Pearsall v. Great Northern R. Co., 161 U.S. 664 (40 L. Ed. 838, 16 Sup. Ct. Rep. 705), is analogous in principle. In this case the Great Northern Railway Company was authorized by its charter to connect with or adopt as its own any other railroad running in the same general direction and to consolidate the latter in proportion to its capital stock with the capital stock of the Great Northern Railway Company. Under this authority it arranged for the purchase, through its stockholders, of one half of the stock of the Northern Pacific Railroad Company. A suit was instituted to enjoin the Great Northern Railway Company from entering into and carrying out that agreement. The Great Northern Railway Company justified its attempt to enter into that agreement on the ground that the authority given it, by its charter, was a vested right which could not be abrogated by the *Page 205 legislature. The injunction was sought on the ground that the agreement violated a law of Minnesota, which provides that no railroad corporation shall consolidate the stock, property or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control any other railroad corporation owning or having under its control a parallel or competing line. The Great Northern Railway Company undertook to justify the act of entering into the agreement by authority of the Dartmouth College case. Mr. Justice BROWN in the opinion inPearsall v. Great Northern R. Co., 40 L.Ed., in page 847, column 2 (161 U.S. 673, 16 Sup. Ct. Rep. 713), said:

"A vested right is defined by Fearne, in his work upon Contingent Remainders, as `an immediate fixed right of present or future enjoyment'; and by Chancellor Kent as an `immediate right of present enjoyment, or a present fixed right of future enjoyment.' 4 Kent. Com. 202. It is said by Mr. Justice COOLEY that `rights are vested, in contradistinction to being expectant or contingent. They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.' Cooley Const. L., 332.

"As applied to railroad corporations, it may reasonably be contended that the term extends to all rights of property acquired by executed contracts, as well as to all such rights as are necessary to the full and complete enjoyment of the original grant, or of property legally acquired subsequent to such grant. If, *Page 206 for example, the legislature should authorize the construction of a certain railroad, and by a subsequent act should take away the power to raise funds for the construction of the road in the usual manner by a mortgage, or the power to purchase rolling stock or equipments, such acts might perhaps be treated as so far destructive of the original grant as to render it valueless, although there might in neither case be an express repeal of any of its provisions. Sala v. New Orleans, 2 Woods, 188.

"But where the charter authorizes the company in sweeping terms to do certain things which are necessary to the main object of the grant, and not directly and immediately within the contemplation of the parties thereto, the power so conferred, solong as it is unexecuted, is within the control of thelegislature and may be treated as a license, and may be revokedif a possible exercise of such power is found to conflict withthe interests of the public."

The common-law doctrine of riparian rights is a system or a general law established by general custom and judicial decisions from the time whereof the memory of man runneth not the contrary. It was established, however, in a country where irrigation was not known or needed. So long as the right is not used, or water appropriated under it, it is a usufruct and is not vested property. For this reason, the California courts, although adhering to the doctrine of riparian rights, have held that a lower riparian owner cannot enjoin the diversion of water above his riparian lands without showing damages. This should not be the case if the doctrine of riparian rights, as known to the common law, was in full force and effect: Weiss v. Oregon Iron Steel Co., 13 Or. 496 (11 P. 255). It is not the law as announced in Crawford Co. v. Hathaway (Hall), 67 Neb. 325 (93 N.W. 781, 108 Am. St. Rep. 647), and cited in *Page 207 Section 816, 2 Kinney on Irrigation and Water Rights.

"In the determination of causes, the courts of this state have,in the absence of statute, always followed and applied the general rules of the common law in so far as those rules werefound to be applicable to existing conditions and suitable to theneeds and necessities of the people." United States F. G.Co. v. Bramwell, 108 Or. 261, 264, 268 (217 P. 332, 32 A.L.R. 829).

Probably three fourths of the area of this state is not suited to the common-law riparian doctrine. It is a well-established rule in this state that it is not the amount of the actual damage done which entitles one to the extraordinary remedy of injunction, but it is the nature of the injury, or in other words, if the injury is not reasonably measurable in damages, then a writ of injunction should issue: Phipps v. Rogue RiverValley Canal Co., 80 Or. 175, 180 (156 P. 794); Bernard v.Willamette B. L. Co., 64 Or. 223 (129 P. 1039); 3 Kinney on Irrigation and Water Rights, § 1606, pp. 2922 and 2923, and the long list of authorities cited under note 5.

The decisions of this court have to a large degree, if not entirely, abrogated the common-law doctrine of the right of a riparian owner to the continuous flow of a stream. The owner of a bank of a flowing stream has certain well-defined rights in the stream. The beneficial use of the water, however, is the measure of his vested right and not the continuous flow of the stream as defined by the common law.

Mr. Justice H.J. BEAN in In re Willow Creek, 74 Or. 592, 623 (144 P. 505, 146 P. 475) said: *Page 208

"The rule of `continuous flow' has been changed by custom and crystallized into express law by statute. It is stated in effect in United States v. Rio Grande Irr. Co., 174 U.S. 690, 702 (43 L. Ed. 1136, 19 Sup. Ct. Rep. 770), that this rule obtains in those states in the United States which have simply adopted the common law. It is also true undoubtedly that a state may changeits common-law rule as to every stream within its dominion andpermit the appropriation of the flowing waters for such purposesas it deems wise."

This opinion rendered in bank October 20, 1914, expressed the unanimous views of the court and has never been modified. To the same purport is the opinion of Mr. Justice R.S. BEAN in EasternOregon L. Co. v. Willow River L. Irr. Co., 187 Fed. 466, 468, where he says:

"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, and this may, under some circumstances, include flood or overflow waters reasonably to be anticipated during ordinary seasons.Miller Lux v. Madera Canal Irr. Co., 155 Cal. 59 (99 P. 502, 22 L.R.A. (N.S.) 391); Miller v. Bay Cities Water Co.,157 Cal. 256 (107 P. 115, 27 L.R.A. (N.S.) 772). But in my judgment a lower riparian proprietor who is not injured by the diversion of the flood waters above his land cannot invoke the aid of a court of equity to restrain such diversion although by a nonriparian proprietor. Such is the holding of the supreme court of California. Fifield v. Spring Valley Waterworks, 130 Cal. 552 (62 P. 1054). I am not advised that the direct question has ever been passed upon by the supreme court of this state, but I think the tendency of the later decisions is to that effect. Indeed, in my judgment, no other rule can be adopted which will serve to develop the arid section of the state and be in harmony with the state legislation concerning water, its appropriation, *Page 209 and use. The modern tendency is to make the beneficial use of water the test of the right, and, unless it is put to a beneficial use by a riparian proprietor or is of some substantial benefit to him, he ought not be allowed to prevent its use by others." Brown et al. v. Chase, 125 Wash. 542 (217 P. 23).

What, then, has become of the doctrine of continuous flow?

One of the material, if not essential, elements of the doctrine of riparian rights according to the common law was the right to have the stream flow continuously without diminution or deterioration regardless as to whether it was applied to a beneficial use or not. Again, Mr. Justice BURNETT in Caviness v. La Grande Irr. Co., 60 Or. 410, 423 (119 P. 731), said:

"Concerning the mere diversion and use of water there is no difference between a nonriparian appropriator and a 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 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."

But this is not the common-law doctrine. Waters could not be diverted from riparian lands for irrigation against the objection of a riparian owner. *Page 210

"The plaintiff's right to an injunction does not depend upon the amount of injury which he has received. Being a riparian owner, he has a right to the flow of the entire stream, asagainst any diminution thereof by one who is not a riparianowner, and the claim of the defendants that they have a right to divert a portion of its flow authorizes him to invoke the aid of equity in order that this claim may not ripen into a right."Gould v. Eaton, 117 Cal. 539 (49 P. 577, 578, 38 L.R.A. 161, 183); Weiss v. Oregon Iron Steel Co., 13 Or. 496 (11 P. 255).

In Title Ins. Trust Co. v. Miller Lux, 183 Cal. 71 (190 P. 433, 437), Mr. Justice SHAW used this language:

"Many persons supposed that such right extended to all the lands owned by a single person, although obtained by separate conveyances, some of which did not convey any land abutting upon the stream, providing all the parcels were contiguous. * * It is not improbable that the parties to that agreement understood that they would have riparian rights in the stream for all of their lands if it was all contiguous to land which did abut upon the stream. When the contract of 1888 was made, however, the opinion in Lux v. Haggin had definitely declared that only those tracts which were acquired by a single conveyance from the state and which abutted upon the stream were entitled to riparian rights. 69 Cal. 424, 425 (4 P. 919, 10 P. 674)."

It is needless to cite other authorities. It is impossible to reconcile the conflicting authorities upon the right and title to water. The courts of the western states, in attempting to adjust the rights of conflicting interests, maintaining and supporting the common-law doctrine of riparian rights with the doctrine of appropriation, have made "confusion *Page 211 worse confounded." The doctrine of appropriation and riparian rights are diametrically opposed to each other and cannot be reconciled. Different interpretations of the common law of riparian rights have been made by courts of the different states as is shown herein above.

It is true that the rights of the Power Company could have been condemned by the appropriators of the water under the act of 1891. It is also true that the Power Company could have exercised its right to appropriate all the water of Hood River for power purposes. Under the Water Code adopted in 1909, the Power Company could have protected its claim to all the waters of Hood River by being engaged in the work of applying the water to beneficial uses at the time the Water Code became the law of this state. Neither party is to be penalized because they did not utilize all the rights they might have exercised under the law. The law of waters in this state has developed with the development of the state. In the early history of the state the settlement was principally in the Willamette Valley. The climatic and physical conditions of that valley are quite similar to the climate and physical conditions in England where the common law had its origin and development. The common law having been adopted, it was but natural that the common-law doctrine of riparian rights should have been applied. In the early days, irrigation was not of sufficient importance or magnitude to have directed the attention of either the legislature or the courts to the importance of the doctrine of appropriation. The history of legislation, as well as of the adjudications by the courts, disclose a gradual departure from the inapplicable elements of the strict common-law doctrine *Page 212 of riparian rights. Apparently, the legislature of the state has been as zealous in guarding and protecting riparian rights as have the courts. With the increase of population in the arid and semi-arid regions of the state the growing importance of irrigation to the development and settlement of the state has forced itself upon the attention of both the legislature and the courts. The result has been the modification by the courts of the common-law doctrine of riparian rights and resulted in the enactment of the Water Code by the state legislature. The very able and comprehensive opinion of Mr. Justice BEAN, and the collection of authorities in that opinion, justifies the writer in refraining from giving further citation of authorities. For the reasons given in this opinion, the writer believes that the legislature had the power to enact the Water Code and to define vested rights in the waters of the state as therein defined.

Conflict over water rights and privileges caused the separation of Abraham from his nephew Lot. Abraham, with greater generosity than is often displayed where such interests are conflicting, gave Lot the preference of locations. Lot, beholding the well-watered plains of Sodom and Gomorrah, pitched his tent there. Ever since that date, we know not how long prior thereto, water has been a fruitful source of contention and litigation. More litigation has been caused by conflicting claims to the use of water than any other subject matter. Many others, besides Mr. Tulliver, proprietor of the Mill on the Floss, have expended their substance litigating over the right to the use of water. By adopting the Water Code of this state, the legislature has attempted to fix a standard by which the conflicting *Page 213 claims may be equitably and justly defined and fixed. Its basic principle is the beneficial use of the water for the good of all the people of the state. In the early and leading case of Weiss v. Oregon Iron Steel Co., 13 Or. 496 (11 P. 255), "the owner has no property in the water itself, but a simple usufruct." The Water Code declares the waters of the state to be public property. The courts, therefore, should liberally construe the Water Code according to the intent and spirit of the legislature, and to the end that it be actually administered to the necessities of the inhabitants of the state as nature intended it should.

This is not taking the property of one and giving it to another. It is making the use of public property, water, the measure of the property of the individual therein. The right to water is a usufruct. That right becomes vested when it is applied to a beneficial use, and not before.

For these reasons, the writer concurs with the opinion of Mr. Justice BEAN.