Cookinham v. Lewis

Opinion by

Mr. Chief Justice Eakin.

1. A writ of review lies only in cases in which the lower court, officer or tribunal has exceeded its jurisdiction, or where it has exercised its judicial functions erroneously and contrary to the course of procedure applicable to the matter before it: Garnsey v. County Court, 33 Or. 201 (54 Pac. 539, 1089). Therefore, the writ will only bring up the record, upon which the case will be reviewed as to questions of jurisdiction and errors in the proceeding. It will not review questions of fact, and has nothing to do with the evidence. Smith v. Portland, 25 Or. 297, 301 (35 Pac. 665); Douglas County Road Co. v. County of Douglas, 6 Or. 299, 303.

The main contention of plaintiffs is that by the terms of sections 45 and 47 of the act of 1909 (Laws 1909, pp. 332, 333; Sections 6624, 6627, L. O. L.), known as the “Water Code,” the person first filing an application for a water right is entitled to the first right, and that the law is mandatory upon the State Engineer to approve it, unless the proposed use is a menace to the safety and welfare of the public, in which case he must refer it to the board of control, and that there is nothing before him in this case to disclose any such menace. It was upon this ground that the circuit court sustained the writ.

To comprehend the full meaning of those two sections of the Water Code, it is necessary to review the law relating to the subject. To aid in the reclamation of desert public land, the Congress of the United States, by the act of August 18, 1894, known as the “Carey Act” (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U. S. Comp. St. 1901, p. 1554], found also in volume 1, L. O. L., p. 65), and amendments of June 11, 1896 (Act June 11, 1896, c. 419, 29 Stat. 434), March 3, 1901 (Act March 3, 1901, c. 853, § 3, 31 Stat. 1188 [U. S. Comp. St. 1901, p. 1557]), and March 15, 1910 (Act March 15, 1910, c. 96, 36 Stat. 237), authorized the Secretary of the Interior to contract with certain States to grant and patent to the State such desert land, not exceeding one million acres in each State, as the State may cause to be irrigated, reclaimed and occupied by actual settlers. In 1901 the legislature of Oregon accepted the conditions of this offer and provided that, upon the application of any person, desiring to reclaim any desert land, the State Land Board should enter into a contract with the Secretary of the Interior therefor, and enter into such contract as may be necessary to cause the reclamation thereof, with provision for procuring water therefor and the manner of procedure. Laws 1901, p. 378; Section 3283, et seq., B. & C. Comp. For the purpose of still further aiding in the reclamation of arid public lands,, the legislature, on February 22, 1905 (Laws 1905, p. 401; Section 6598, L. O. L.), enacted a law for acquiring water for the reclamation of arid lands; created the office of State Engineer, and gave him general supervision of all measurements and records of appropriation of waters of the State, and required him to deliver to the Governor-before each session of the legislature a full report of the' work of his office with such recommendations for legislation as he may deem advisable.

The legislative act of February 24, 1909 (Laws 1909,. p. 377; Section 3860 et seq., L. O. L.), which created the desert land board, of which the State Engineer is a member, again accepted the conditions of the Carey act and made further provision for reclaiming the desert land in this State, and repealed Sections 3283-3293, B. & G. Comp., above cited. The act of February 24, 1909, known as the “Water Code” (Laws 1909, p. 319; Section 6594 et seq., L. O. L.), declares that water rights can only be acquired as in the act provided; and creates the offices of division superintendents and the board of' control, of which the State Engineer is a member. The first 44 sections of the act relate to the manner of settling disputed rights among water users and Sections 45 to 47 (Sections 6624, 6626, L. O. L.) relate to the manner of' acquiring water rights, and Sections 58 and 59 (Sections. 6622, 6623, L. O. L.) provide for reservoir permits. Section 45 provides that any person intending to acquire' a right to the beneficial use of any waters shall, before commencing the construction of any ditch, make application to the State Engineer for a permit to make the-appropriation. By Section 46 the application shall, among other things, set forth the nature and amount of the-proposed use; if for agricultural purposes it shall give the legal subdivisions of the land and the acreage to be-irrigated. Farmers’ Canal Co. v. Frank, 72 Neb. 136 (100 N. W. 286). Section 47, among other things, provides “it shall be the duty of the State Engineer to approve all applications made in proper form which contemplate the application of water to a beneficial use, but when the proposed use conflicts with determined rights, or is a menace to the safety and welfare of the public, the application shall be referred to the board of control for consideration. It shall be the duty of the board to enter an order directing the refusal of such application, if, after full hearing, the public interest demands.” Section 58 gives the procedure under a reservoir permit, called a “primary permit” in which an enumeration of any lands proposed to be irrigated under this act shall not be required, but the parties proposing to apply the water stored to a beneficial use shall file an application for a secondary permit, and provision is made for acquiring title to the water by the user as appurtenant to the land irrigated.

2. The right to the beneficial use of water to be acquired under the permit applied for under Section 45 et seq., is not an opportunity to acquire a monopoly of the water of a stream for promiscuous sale, but must contemplate a use upon specific lands which, when completed under Section 53, shall become appurtenant to the land to which it is applied.

3. The primary reservoir permit, provided for by Section 58, contemplates a storage of the water in some locality where it can be utilized for irrigation. The secondary permit contemplates that users of the water shall acquire a permanent ownership by agreement with the owner for a specified quantity of the stored water for the needs of and use upon his land, and when reclamation is contemplated the water becomes appurtenant to his land. The Water Code makes a distinction between a permit for diversion of water and one to construct a reservoir and store surplus water. The latter does not include the right to divert and use such stored water, which must be the subject of the secondary permit.

4. This Water Code was enacted in the light of and with reference to the desert land act of 1901, above cited, and the act substituted therefor, which creates the desert land board, as well as the act of 1905 above cited. The fact that a permit must be granted by the State Engineer before a right can be initiated indicates that it is not merely a question of priority in filing the application that secures the right. There are many things to be considered by the engineer before approving the application for a permit. If it appears that the time when the construction is to be begun, or completed, as stated in the application, is unreasonable, or if the use is impracticable or not beneficial, the engineer may deny the permit; or if it conflicts with determined rights or is a menace to the safety and welfare of the public, it would be his duty to refer the application to the board of control; and in determining whether a permit shall be approved he is not limited to the recitals in the application. He may act upon any information he may have. By Section 10 of the act of 1905 (Laws 1905, p. 404; Section 6590, L. O. L.), he is required to make hydro-graphic and topographic surveys and investigation of each stream system and the source of water supply in the State, and report the same to the Governor, and he is thus in a position to determine whether an application will be for a beneficial use or whether any permit applied for would be a menace to the public welfare. With this, understanding of the statute upon the subject, and other facts within the knowledge of the State Engineer, we will proceed to apply it to the conditions in this case. It appears that since . 1901 the State, through the State Land Board, until the creation of the desert land board, and thereafter through it, has contemplated the reclamation of desert public lands under the Carey act and the appropriation of the surplus waters of the stream for that purpose.

5. Plaintiffs’ construction of the Water Code and the duties of the State Engineer would place it in the power of any person or corporation, by an application for a permit, to anticipate the action of the desert land board, and forestall its consummation of any agreement for reclamation of desert public lands except upon such terms as such applicant might dictate, the possibility of which is prevented by the language of Section 47 of the Water Code, viz.:

“It shall be the duty of the board to enter an order directing the refusal of such application if, after full hearing, the public interest demands it.”

Under the Carey act, desert public land can only be reclaimed through the State. When reclaimed the title passes to the State, and by the State to the settler. Therefore, plaintiffs in this case, at the time of the application for a permit, had no right to reclaim the desert public land described in their application until some agreement should be consummated with the State for that purpose and they had no beneficial use to which the water could be applied by them. These facts were all within the knowledge of the State Engineer and the board of control, and they were justified in acting upon such information in determining whether a permit would be a menace to the public welfare, and this is the reason given by the board for directing the refusal of the application.

Certainly public interest demands that a permit to impound or control the waters of Powder River in controversy here should only be granted to such person or corporation as under contract with the State will carry out its plans to reclaim this desert land, and it is the duty of the State Engineer and board of control, to act with the desert land board for the accomplishment- of this purpose. Although plaintiffs may have in view the furnishing of water for irrigation of private lands or the creation of power, assuming, without deciding, that the application states facts sufficient for either purpose, yet the much greater interest involved is the reclamation of the desert public lands, and the evident purpose of the plaintiff was to place itself in position to compel the State to contract with it for such reclamation. It is within the province of the board of control to see that both public and private lands are reclaimed, rather than only the latter. The reclamation of desert lands is subject to contract with the State, and it should have the right and opportunity to select the person with whom it shall contract, as well as a voice in determining the terms of the contract, and if there is any possibility of reclamation of these lands it is necessary that the granting of a reservoir permit be delayed until the State has made some agreement with the applicant, otherwise the State will be without power to secure proper contracts; and these are some of the matters that the statute contemplates may be considered by the engineer and board of control in determining whether the permit would be a menace to the public welfare.

The reclamation of the desert public lands is a public enterprise, and is under the control and direction of the State, and the applicant for a permit to appropriate or impound water for the reclamation thereof is to some extent the agent of the State, and has right to exercise the power of eminent domain and by statute is to have a lien upon the lands for the repayment of the amount of his expenditures and interest. Therefore, the private interests of the applicant for a permit must be subordinate to the public interest contemplated by the statute.

At the argument, and in the briefs, much stress was laid by plaintiffs upon the use of the conjunction “and,” in Section 47 of the Water Code, in the clause “menace to the safety and welfare of the public.” But the next sentence, which authorizes the board of control to direct the refusal of applications “if the public interest demands,” indicates that it was intended by the previous clause that a menace to either safety or welfare would be sufficient ground- to refuse the application. The use of the disjunctive conjunction was evidently intended, and in construing the statute we are authorized to so treat it where it is necessary to carry out the intent of the statute. 2 Lewis, Sutherlin, Stat. Const. (2 ed.) § 397; Ransom v. Rutherford County (Tenn.) 130 S. W. 1057, 1062; People ex rel. v. Rice, 138 N. Y. 151 (33 N. E. 846).

Decided April 25, 1911.

[115 Pac. 342.]

The judgment of the lower court will be reversed and the cause remanded to the lower court with directions to dismiss the writ.

Reversed With Directions.