dissenting.
I would adhere to our former opinion in this case. Vandehey v. Wheeler, 13 Or App 25, 499 P2d 1319 (1972).
Specifically, I disagree with the majority in the following particulars.
Plaintiffs do not seek “to have the court change their point of diversion,” as the majority asserts. The Watermaster directed plaintiffs to repair or replace what the majority calls Dam A at plaintiffs’ expense. The Watermaster stated he would terminate plaintiffs’ rights to appropriate water if they did not do so. As the prayer for relief in plaintiffs’ complaint makes clear, they seek a declaration that they do not have to comply with the Watermaster’s demands, and an injunction against the Watermaster’s following through on his stated intentions.
This presents the question of interpreting and applying ORS 540.310(1), which provides:
“The owner of any ditch or canal shall maintain to the satisfaction of the State Engineer a substantial headgate at the point where the water is diverted. It shall he of such construction that it can he locked and kept closed by the watermaster.”
This statute would require plaintiffs to repair or replace Dam A if it is “at the point where the water is diverted.” ①
The majority concludes that for purposes of applying ORS 540.310(1), plaintiffs’ water is diverted at “the place designated by a permittee in his appliea*48tion * * * and ultimately in the water [right] certificate itself.”② I would define “the point where * * * water is diverted” as that point at which the natural flow of water is, in fact, physically diverted by some act of man. This definition is at least implicit in the water code ③ and in prior Oregon eases. ④ I find nothing in the water code that supports the majority’s definition. ⑤
The majority states that whether the unnamed channel is a natural watercourse or a “ditch or canal,” within the meaning of ORS 540.310(1), is “immaterial.” That is the most material issue in applying ORS 540.310(1) and what I believe to be the proper definition of diversion point to the facts at bar. All parties have treated that issue as material from the filing of pleadings through the filing of petitions for rehearing. In fact, most of the evidence at trial went to that issue.
The record clearly establishes in my mind that the unnamed channel is now a natural watercourse, *49and probably was such in 1949; the majority apparently does not conclude to the contrary. Tims, it is legally impossible for plaintiffs’ diversion point to be at the place stated in their water right certificates. No act of man diverts any water into the unnamed channel at the fork of West Dairy Creek and the unnamed channel. No act of man diverts any water toward plaintiffs at Dam A. The only thing Dam A does is divert water that would otherwise naturally flow down the unnamed channel back into the original channel of West Dairy Creek. Plaintiffs’ diversion point is where they, in fact, physically divert water from the natural flow, i.e., at Dam B. Therefore, ORS 540.310(1) does not authorize the Watermaster to require plaintiffs to repair or replace Dam A.
Such a holding would, incidentally, result in a change in plaintiffs’ diversion point. However, I fail to see how this could possibly prejudice any of plaintiffs’ neighbors. Respective water rights depend upon extent of appropriation authorized and priority date. A change in diversion point, made incidentally to granting other judicial relief, could not possibly affect those material ingredients of water rights. ⑥
ORS 540.310(1) and other provisions of the water code require persons appropriating water to construct devices that enable the Watermaster to measure and regulate the amount of water they appropriate. These plaintiffs have offered to construct control and regulation devices that fully comply with this *50requirement.⑦ Instead, the Watermaster insists that Dam A he repaired or replaced. His testimony makes it clear to me that he is making this demand in an effort to force the water that flows naturally into the unnamed channel hack into the original channel of West Dairy Creek, not because of any real desire to measure or regulate, at Dam A, the amount of water plaintiffs are appropriating. In my opinion, plaintiffs are entitled to a judicial determination that ORS 540.310(1) does not require them to alter a natural flow of water, even though this may incidentally result in a change in their diversion point. ⑧
For the foregoing reasons, in addition to those stated in our former opinion, I dissent.
Only a dam that would completely block the unnamed channel would be a “headgate * * * of such construction that it can be * * * kept closed by the watermaster” within the meaning of ORS 540.310 (1). But see n 3 of the majority opinion.
If the majority is suggesting that a permittee “designates” any of the contents of a water right certificate, I disagree. Water right certificates are prepared and issued by the State Engineer. See, ORS 537.250. (1).
ORS 540.310(1) requires construction of a headgate where water is diverted into an irrigation ditch or canal, i.e., where the natural flow is diverted into a man-made channel.
See, e.g., Hutchinson v. Stricklin, 146 Or 285, 297, 28 P2d 225 (1933):
“To the valid appropriation of water three elements must exist: (1) Intent manifested to appropriate to some beneficial use existing at the time or contemplated in the future; (2) a diversion from the natural channel by means of a ditch, canal or other structure; (3) the application of it within a reasonable time to some useful industry * * *.” (Emphasis supplied.)
In some circumstances, water right certificates are conclusive as to priority'and extent of appropriation. See, ORS 537.270; Cleaver v. Judd, 238 Or 266, 393 P2d 193 (1964). The water code gives no such conclusive effect to a diversion point designation.
The majority emphasize what they consider to be the importance of the designation of plaintiffs’ diversion point in the public records on file with the State Engineer. Anyone consulting those records would learn that plaintiffs’ diversion point is located “in the SW 14 NE 14, Section 13, Township 1 North, Range 4 West, W.M.” I doubt that this information is sufficiently precise to ever be very useful to plaintiffs’ neighbors.
ORS 540.340 (1) provides:
“Whenever it may be necessary for the protection of other water users, the State Engineer shall require every owner or manager of a reservoir or diversion dam, located across or upon the bed of a natural stream, to construct and maintain a suitable outlet in the reservoir or diversion dam which will allow the free passage of the natural flow of the stream. The State Engineer shall determine what constitutes a suitable outlet.”
Apparently with this statute in mind, plaintiffs’ complaint alleges:
“* * * [P]laintiffs are agreeable to installing a measuring device on said stream [the unnamed channel] above their reservoir [i.e., above Dam B] and a measuring device below their reservoir to assist the Watermaster in determining the amount of water to which plaintiffs are entitled and are appropriating * *
Plaintiffs should not be denied relief on the grounds that they did not exhaust the administrative remedy supposedly available to change their point of diversion. I find nothing in the pleadings or record that raises any question of exhaustion of remedies. Moreover, it is not clear to me that ORS 540.520' creates an administrative remedy that is applicable to this situation, i.e., where the plaintiffs claim, in effect, that their diversion point was never actually at the place stated in their water right certificates.