119 P. 731 | Or. | 1911
Lead Opinion
delivered the opinion of the court.
Claiming then, as he does, from the month of June, 1865, the right to use a fixed quantity of water upon his land without regard to its duty to others, the plaintiff assumes the character of an appropriator in this litigation and must be held to have waived his rights as a riparian proprietor, at least for the purposes of this suit, although the river in its natural course washes his land. The same reasoning applies to the answer of the defendant, J. B. Stoddard, and classes him also as an
We turn now to the cross-petition of the defendent May Park Water Company, and the answers to it already noted. What has been already written here respecting the affirmative matter in the answers of the corporate appellants applies in principle to the cross-petition in question. In brief, the May Park Water Company assumes the role of a mere manager or trustee, while its articles do not authorize such ancillary relations, neither does it show any transfer to it of any of the property for which it defends. Like the corporate appellants, it alleges no interest in the water in its own right, and its charter does not give it the authority to act as a holding concern. It fails to prove its allegation of the capacity in which it is acting.
The result of the analysis is that the question is between the plaintiff and the defendants without reference to possible disputes among the latter, and that the plaintiff is prior in his appropriation to all of the appellants and, as we believe, from the evidence, to all the other defendants.
It is quite probable that, if the waters of the Grande
Confining our decision, as we do, to the case-made and to the parties before us its effect is subject to the same limitation and will not be expanded beyond the question actually determined. New conditions as to the use of the
Extravagant or wasteful application even to a useful project or any employment of water in a nonbeneficial enterprise is not included in the term use as contemplated by the law of waters. Then, too, when even an appropriator is not using the water it is available for the use of others. All these conditions may arise and be involved concerning the water question in the future, and our decision is not designed to determine them in advance. It only governs the parties to this suit on the case made by the pleadings.
Affirmed.
having heard this cause in the lower court, took no part at the trial or in the consideration hereof.
Concurrence Opinion
delivered the following concurring opinion:
I concur in the result of this decision, but I cannot give my consent to the following statement: “Primarily, any use of the water of a natural stream for a ^beneficial purpose is free to him who has an opportunity to take it without infringing upon the property rights of another. * * Concerning the mere diversion and use of water there is no difference between a non-riparian appropriator and riparian user, provided the former has a lawful right of access for that purpose to the stream from which the diversion is made. The essential condition of appropriation in the first place on public lands was the consent or acquiescence of the then riparian owner, the general government. ' The reason of the rule is not changed by the fact that the riparian owner is a private person provided the appropriator has his consent, or, what is equivalent, that the appropriator and the riparian owner are one and the same person. -The deduction then is that if any one can lawfully gain access for that purpose to a non-navigable stream, and water is there not subject to use by another, such a one may appropriate it for his own use”—the effect of which statement is to abolish or do away with riparian rights as heretofore recognized in this State.