52 P. 506 | Or. | 1898
delivered the opinion.
This is a suit to enjoin defendants from interfering with plaintiff’s maintenance of a ditch constructed across their premises. The evidence shows that on December 23, 1859, the Surveyor-General of Oregon approved the plat of the survey of township 37 S., range 5 W. of the Willamette Meridian, whereupon the legal title to section 16 of said township and range became vested in the State of Oregon for the support of common schools : 9 Stat. 323 ; 11 Stat. 383. In 1868 one Lewis Strong constructed a ditch across the W. 1/2 of the N. E. i of said section, and thereby diverted from Board Shanty Creek the waters thereof, which he used in working a mine in section 22, in said township and range; but he having abandoned his improvements, plaintiff, on April 1, 1876, took possession thereof, and -with the water flowing in the ditch continued the operation of the mine, during nearly every season, to the commencement of this suit. On November 21, 1883, defendants settled upon the land first above described, through which Board Shanty Creek flows, and thereafter obtained a deed from the State of Oregon for said tract which contained no reservation of
The question presented for consideration by this appeal is whether a prior appropriator of water from a natural stream, flowing throngh state lands, has such a vested right to the use of the water and to the ditch in which it flows, also constructed on said lands, as will defeat the claim of one who, with notice of such diversion and existence of the ditch, obtains from the state a deed for the premises, without reservation of any water rights. Defendants’ counsel contend that, prior to the appropriation complained of, the State of Oregon was a riparian owner of the land sought to be burdened with the easement, and entitled to have the waters of said stream continue to flow in its natural channel past said land; that
The doctrine of the common law, that the water of a stream must continue to flow in its natural channel undiminished in quantity and unimpaired in quality, has been very much modified in the territory embraced in the Pacific Coast States, where a new rule, founded upon the necessities under which the early settlers labored, has been inaugurated. So much, only, of the common law was adopted by these settlers as was axaplicable to the condition of the country in which their lot was cast; and, realizing that water is a powerful agent in separating the precious metals from the baser materials in which they are imbedded, and also serves, when used in irrigating arid tracts, to cause the desert to bud, blossom and bear fruit, and that without the use of such water a vast region must forever remain valueless and uninhabited, necessity compelled these primitive lawgivers to
The wisdom of this new rule was finally recognized by congress, which, on July 26, 1866, passed an act, the ninth section of which, so far as applicable to the case at bar, provides “that, whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws,' and the decisions of the courts, the possessors and owners of such vested rights
The custom of appropriating water to a beneficial use has been limited by this court, which holds that the act of congress of July 26, 1866, applies only to government lands : Curtis v. La Grande Water Co., 20 Or. 34 (23 Pac. 808, and 25 Pac. 378, 10 L. R. A. 484). Mr. Justice Lord, rendering the decision of the court in that case, and speaking of the diversion of the waters of a stream claimed to have been made in pursuance of the provisions of the Federal statute above quoted, says : “While that act was passed a year later than the facts show the waters of the creek were diverted, yet it applies only to government land and streams flowing through it. In these, under the circumstances indicated in the act, the prior appropriation of the water may operate to secure a vested right to divert it, which shall be maintained and protected. But it has no application to the lands of individual owners, and, as against them, can confer no right to divert the waters of streams flowing through their lands.” In Alta Land and Water Co. v. Hancock, 85 Cal. 219 (24 Pac. 645, 20 Am. St. Rep. 217) it is held that a stream flowing through the land of a riparian owner is an appurtenance thereto, which runs with the land as a corporeal hereditament, which might be segre
In Vansickle v. Haines, 7 Nev. 249, it was held that the rights of the defendant, a riparian owner,- whose patent for public lands from the United States was issued without reservation of any water rights, and antedated the act of congress of July 26, 1866, was superior to the claim of plaintiff, a prior appropriator of the waters of a natural stream flowing through defendants’ land. Whitman, J., speaking of plaintiff’s claim as a prior appropriator, says : “ He acquired no right against Haines, prior to the date of the latter’s patent, which could affect that grant, because there was no title in Haines to be affected by acts of the respondent. He could acquire no right against the United States, for, as to that government, he was a trespasser, in that he diverted water from its lands not sought to be pre-empted by him. No presumption of grant arises against the sovereign, and no statute of limitation runs, save in some excepted instances, of which this is not one.”
In Broder v. Natoma Water Co., 101 U. S. 274, Mr. Justice Miller, referring to the right of prior appropriation, says : “It is the established doctrine of this court that rights of miners, who had taken possession of mines, and worked and developed them, and the rights of persons who had constructed canals .and ditches to be used in mining operations and for purposes of agricultural
In Lux v. Haggin, 69 Cal. 255 (10 Pac. 674), it was held that the State of California, on September 25, 1850, became the owner of certain swamp lands situated within its borders; that a prior appropriation of the waters of a stream flowing through such lands was defeated by a subsequent grant of the state of such lands, without reservation ; and that the rights of the state are not dependent upon or limited by the decision of the state courts with respect to controversies arising out of prior
In Krall v. United States, 24 C. C. A. 543, 79 Fed. 241, 48 U. S. App. 351, the officers of the United States, in pursuance of a proclamation of the president in January, 1868, reserved six hundred and forty acres of land from the public domain in Idaho for a military post, through which a stream flowed, and from which a prior appropriation of the waters thereof was made for the use of the government. Thereafter plaintiff went upon the public lands and diverted and appropriated a certain quantity of the water of said stream from a point above the military reservation for the purpose of irrigating his own land; and it was held that the prior appropriation of the government did not defeat the right of a subsequent appropriation by the citizen. Mr. Justice Ross, with whom Mr. Justice Hawley concurred, speaking for the majority of the court, says : “The creation of the reservation for military post purposes did not destroy or in any way affect the doctrine of appropriation thus established by the government in respect to the waters of the non-navigable streams upon the public lands. They continued subject to appropriation for any useful purpose. The appropriation of a part of those waters for the use of the military post secured it in the use of the portion so appropriated, but it did not take from others the right to make such appropriation above the reservation as
The legislative assembly of Oregon passed an act, approved February 24, 1885, which granted to any individual or corporation a right of way over all lands belonging to the state, for the construction of water ditches, to be used for irrigation, manufacturing, or mining purposes, and provided that all patents issued by the state for any of its school, university, tide, swamp, or overflowed lands, should be subject to any vested rights of the owners of such water ditches: Hill’s Ann. Laws, §§ 4057-4060. This statute was a legislative sanction, confirmatory of the customs of miners, and, like the act of congress of July 26, 1866, was the recognition of a pre-existing right, rather than the granting of a new easement in its real property. Without it the common law of the Pacific Coast States, applicable alike to the arid and mining regions, authorized the diversion of water flowing through public lands of the state, and ah appropriation thereof for irrigating and mining purposes ; and Strong, having taken advantage of this universal custom, made a diversion and appropriation, but, having abandoned his interest therein, his right reverted to the public, so that, in 1876, when plaintiff took possession thereof, it was the initiation of a new diversion and appropriation, but, having been made prior to defendants’s settlement upon the state lands, it is superior to their interests therein, and hence plaintiff is entitled to the relief awarded, so far as it relates to an interference with his right to enter upon defendants’ land to clean and repair the ditch.
Counsel for the defendants insist that the court erred
Affirmed.