Concurring in Part, Dissenting in Part. I concur in the opinion of Mr. Justice Burnett as to the result of the case and to the holding that the water right of the plaintiff is superior and prior to that of the defendant. I dissent from the language in the discussion of the riparian right question which I understand is to the effect that a riparian proprietor of land patented by the United States prior to the passage of the Desert Land Act of March 3, 1877, has a right inseparably annexed to the soil, to have the water of a stream flow down to his land as it was wont to run, undiminished in quantity and unimpaired in quality. The question of riparian rights is fully discussed in the several opinions In re Hood River, 227 Pac. 1065, and it is unnecessary to further comment thereon.
In the opinion and decree In re Willow Creek, 74 Or. 592 (144 Pac. 505, 146 Pac. 475), in which case the construction of the decree is involved herein, the decree follows the general language of the opinion. In that case the Eastern Oregon Land Company claimed a riparian right to the use of water for about 7,000 acres of land through which Willow Creek passes. The company also claimed by virtue of appropriation, through three ditches constructed at different dates for tracts of land separate and distinct from the other land of the company. That company also claimed the right to have irrigated, on account of natural overflow, certain tracts of land aggregating 370 acres. At page 621 of the report it is stated, in effect, that the overflow of these lands was analogous to a crude manner of irrigation, much the same *120as the method adopted by other irrigators on the same stream at an early date, when they cnt ditches and allowed the water to flow into sloughs and low places and subirrigate their lands. It was there stated:
“It is unimportant how difficult or with what ease water can be appropriated for irrigation. It is tantamount to a beneficial use and is a valuable right which should not be ignored.”
The company was awarded 3.65 second-feet of the waters of Willow Creek for the irrigation of 292.02 acres, described by subdivisions in the table with a priority date of 1867. This definite amount was allowed as an appropriation or quasi appropriation. As to the land which had been irrigated in such manner, it is stated in the decree as follows:
“That said Eastern Oregon Land Company is entitled to have irrigated the 292.02 acres of land on account of same having been heretofore overflowed in the amount and to the extent hereinbefore stated, subject to the rights since acquired by adverse user, and the like antagonistic to such rights; and water for said 292.02 acres shall be diverted from Willow Creek under the supervision of the Water Master, in such manner as he may direct.”
The opinion suggested the installation of measuring devices for the amount of water awarded for the 292.02 acres, which would necessitate the construction of head-gates and ditches or flumes. The company has never availed itself of this privilege.
As to the remainder of about 7,000 acres of land of the company, as shown on page 627 et seq. of 74 Or., the company was denied the claim as a riparian proprietor to a “continuous flow” of the stream, and allowed “no additional use of water,” that is, no water for irrigation in addition to its three appro*121priations by means of ditches, and 3.65 second-feet for the 292.02 acres.
In the decree mentioned, the plaintiff was allowed from the water of Willow Creek through certain ditches, 1.25 second-feet for the irrigation of 100 acres of land, with a priority of 1871, and 3.06 second-feet for the irrigation of 244.08 acres, with the priority of 1873.
Plaintiff’s hostile use of the water for more than ten years prior to the decree adjudicating the water rights of Willow Creek renders plaintiff’s right superior to the award of 3.65 second-feet of water for the defendant, according to the terms of the decree In re Willow Creek. This would be the same wherever the defendant might take the water out.
The award of a definite quantity of water to the defendant was not an allowance of a riparian right. It is settled in this state that a definite ¿mount cannot be fixed by the decree of the court in advance as belonging to a riparian proprietor by virtue of his riparian right: Caviness v. La Grande Irr. Co., 60 Or. 410 (119 Pac. 731).
Application of the defendant for a change of the plan of use does not show that “such change can be made without detriment to” the existing right of plaintiff: Section 5764, Or. L. As shown by Mr. Justice Burnett’s opinion, the defendant should not be permitted to have the benefit of the same water right in two places. The defendant should be enjoined from diverting any of the water out of Willow Creek above the lands of plaintiff to the detriment of plaintiff’s award of a water right by the decree of the Circuit Court of June 6, 1916, by virtue of the award for its 292 acres.