On Petition for Rehearing.
Opinion by
Mr. Chief Justice Eakin.6. It is suggested in the petition that the opinion questions the good faith of plaintiffs. Such was not the intention, and we think the opinion is not susceptible of such an imputation. Neither does it decide the relative rights between plaintiffs and Finkelnburg.
It is also assumed in the petition that plaintiffs’ application for a permit was made under Section 58 of the Water Code for a reservoir permit only, and suggests that the requirement of Section 46 that the application shall give the legal subdivision of the land to be irrigated has no application to a petition for a reservoir permit. But counsel overlook the fact that the application is for a permit to use the public waters of the State, *496namely, “370 cubic feet per second of the flow of Powder River,” thus claiming under Sections 45 and 46, as well as 58.
7. They also assume that it is sufficient to state in the application for the permit that the appropriation is for a beneficial use, which the engineer must accept as conclusive upon that question. But the statute only requires the engineer to approve the application when, among other things, it contemplates the appropriation of water to a beneficial use. Any language in the opinion that might be construed to hold that the engineer can arbitrarily control or dictate whose applications for a permit shall be allowed was not so intended. He is only required to approve an application when it complies with the conditions of Section 47, and its sufficiency depends upon whether there is a beneficial use to which the water can be applied, and not alone that the application recites that fact. If the application is not approved by him, it shall be referred to the board of control, which can direct the engineer to deny it, if public interests demand. If the application for an appropriation first filed is for a private use or for a public use, which is available to the applicant, then the engineer must approve it; the other conditions being fulfilled. But he is not required to approve an application for an appropriation or for a reservoir, intended for a public, beneficial use, which is not available to the applicant. The beneficial use in this case was not available to plaintiffs and that is the weakness of plaintiffs’ position here.
8. This answers also plaintiffs’ contention that priority of filing gives priority of right. No doubt the first thing should have the first right when all the -terms of the law, as to the application, are fulfilled, which would be the case in an application for a private use, as by a settler upon his own land, or for a public use available to the applicant, which in either case will not be a menace to *497public interests. The only reference in the statute to priority of filing is that no application shall lose its priority on account of defects in the application, which are remedied within 80 days.
In urging that the priority of filing must control, counsel suggests that the Water Code was prepared by the Oregon Conservation Commission, which was familiar with both the law and the subject, and that the language used in the act should be strictly followed in giving plaintiffs’ application priority. Since plaintiffs refer to the intent of the commission, we are justified in referring to it as well as to the intent of the legislature. In the opinion we only referred to previous statutes on this subject to show the attempts of the State to utilize Its surplus water of the lakes and streams in reclaiming arid land, as well as for other purposes. Congress took the initiative in the matter and the State of Oregon, since the Carey act (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U. S. Comp. St. 1901, p. 1554]), has sought to co-operate with Congress, and the Oregon Conservation Commission, at first a voluntary organization, but in 1909 made a creature of statute, has been working to the same end, which resulted in the State legislation of 1909, with a view to great public enterprises for the utilization of the surplus waters and the reclamation of arid lands. In the report of the commission to the Governor, of date November, 1908, as to the conditions and possibilities under consideration, which is exhaustive on that subject, the defects of the former methods of acquiring water rights are set forth and the undertaking contemplated by the commission outlined, namely, to conserve the surplus waters, as well as to settle and make definite water rights already existing as the only means of reclaiming arid lands of the State under the Carey act (see pages 66, 71 and 73 of the report), under the control of the State in a manner not possible by *498private efforts alone. It is. stated by the commission, at page 89 of the report, that “the desired laws (as to reclamation) can now be framed in harmony with the proposed legislation on the subject of water rights, which should be and is the necessary foundation of reclamhtion by the State.” That statement shows that these laws were intended to be dependent upon each other, and to constitute a State system of water title as a basis of sale to arid land owners or to settlers upon such land. The grant of the Carey act is upon the proviso that the State will assume the responsibility of reclamation, which includes the procuring of water therefor.
By Section 5 of the desert land board act (Section 3864, L. O. L.), it is provided that the board will contract with an applicant to reclaim the land when it appears to it that the plan is feasible, that the applicant is financially able to complete the work, and that its completion will be to the best interests of the State; the contract to be let to the lowest responsible bidder, when the estimate of the lien for costs is reasonable. Plaintiff’s construction of these legislative acts would deprive the board of any discretion in these matters, and thus defeat the very purpose of the statute. The whole purpose of the present system of water laws has been developed with a view to State control to reduce legislation to a system that shall accomplish this reclamation, together with the other uses of public water as a great public enterprise, carried out by an administrative system that will also accomplish a speedy adjustment of relative rights through these boards, not only of individual cases, but of the stream system.
The petition is denied.
Reversed : Rehearing Denied.