*1 April 16, reargued April 10, 29, 1951, Argued affirmed October REED AL. v. WITHERS ET
Leland 8.
respondent. B. him on the brief was McCon- With C. Burns.
nell,
George Attorney Foxley, Neuner, General, and.E. G. Deputy Attorney General, Salem, filed brief as amici curiae. *2 J.
LUSK, single question appeal for decision on this is applicable § whether 116-437, OCLA, to the state Oregon. of That section reads: basis,
“Beneficial use shall be the the measure rights and the all to limit of the use of water in state, this and whenever hereafter the owner of a perfected developed right and water or shall cease appropriated, period to water fail use the for a of years, right five successive to use there- shall such cease, and failure to use shall be con- clusively presumed to an abandonment such be of right, water and thereafter the water which was subject right the revert to the of use under water shall such again subject and become by appropriation provided of law, the manner subject act or existing priorities; provided, to apply shall or of to, affect, water, the use rights acquired of use, cities and towns in appropriation, purchase, this state, or for all municipal purposes; usual reasonable and and this impair shall act not be so construed as to of of such and use cities towns to the acquired by аppropriation pur- water, whether recognized legis- chase, or heretofore bv act may acquired; lature, hereafter be and right of all cities and towns in this state to acquire rights to the use of the water natural state, streams and lakes within this not otherwise subject rights, appropriated, all reasonable existing and for municipal purposes, and usual municipal such further reasonable and usual may reasonably purposes anticipated by growth population, reason or to secure suffi- supply emergency, hereby cient cases of expressly confirmed.”
543 way. In Eobert Lowe in this 1928 C. The case arose Township forty of land in acres was the owner Harney County, Eange East M. in South of W. irrigate
Oregon, from the such land with the Pot Lowe of Mill Creek and Coffee Creek. waters mortgaged I and was a veteran of World War Aid Commis- land to the War Veterans State World security pursuant him for a loan made to sion as provisions of Art of the constitution XI-C and in he and defaulted, Lowe 104-110,OCLA. conveyed land the state in lieu of fore- his wife being mortgage canceled. The the note and closure, held land until 1945 when it sold title to the predecessor it to in interest of contestee Ealph During period appellant, E. Eeed. years ownership by land
thirteen the state the irrigated, although available for (cid:127)was not water was purpose. stipulated. These facts are *3 by present proceeding The commenced a com- by plaint respondents filed the contestants Harney County, and Circuit Court for was referred adjudication engineer the state for an of the water parties pro- There involved. were other to the ceeding, The but we are not concerned with them. appeal
controversy, parties so far to this are as the concerned, question turned on the whether the state by right period for a had its water non-user forfeited years. engineer state that of more than five The held applied state, that such the statute forfeiture contestee, Eeed, occurred, had and therefore that the state, in interest had no successor in the of Mill and Coffee Pot
interest waters Creek exception filed the contestee the circuit Creek. On engineer’s order of court affirmed the state deter- question respect before us and mination 544 accordingly
entered decree from -whichthe contestee appealed. has upon principle crystalized
Eeed relies in the legal tempus regi. maxim, nullum occurrit Statutory rule is thus stated in 3 Sutherland, Con- § ed, 183, struction 3d 6301: language “General words or of a that statute injuriously tends to encroach the affairs of government interpretation receive strict public, favorable to the express provision in the and, absence necessary implicаtion, sovereign remains unaffected.” premise question by We our discussion of the stat- ing, expressly what is conceded the contestants, party respect that the real state is the interest with to loans made the World War Veterans Aid State in the Commission, administration of Act, through subsequently at first through the commission and (Oregon
the State Land Board Laws 175), acting, proprietary, the state was not in a Ch sovereign capacity, capacity but in its such held title to the lands involved and to funds derived from their sale. State Land Lee, Board v.
Or 431, 439, P 372. It is manifest, and there is no contrary, contention to the that, since the is not tempus, mentioned in 116-437,OCLA, the rule, nullum controls our decision unless the case falls within some recognized exception to that rule. exposition
The classic of the doctrine is to be found opinion Story of Mr. Justice in United v. States Hoar, 311, 313, Mason who wrote: why reason, indeed, “The true the law has de- *4 negligence
termined, that there can be no or laches imputed delay to the crown, and, therefore, no right, (though should bar its sometimes asserted king always be, to because the busied for the good, public his and, therefore, has not leisure to assert subjects,) the times limited to within great public policy preserving in the to found be public rights, property and in- revenues, jury negligence and loss, officers. though prerogative And this is sometimes called a right, or nothing it is in fact than a more reservation exceptiоn, introduced for the benefit, ** * equally applicable governments. all to independently “But, doctrine founded on prerogative, the notion of the same construction of ought prevail, upon statutes sort founded legislative government intention. Where expressly by necessary implication is not or in- ought to be clear from cluded, the nature of the language redressed, mischiefs used, government contemplation itself was legislature, before a court law would be put interpretation upon any authorized to such an general, legislature In statute. acts are regulate meant to and direct the acts reasoning ap- of citizens; and in most cases the plicable very applies to them with different, and contrary government often force to the itself. It appears me, therefore, to be a safe rule founded principles of the common law, that the ought gov- words a statute not to include the rights, ernment, or affect its unless that construc- indisputable tion be clear and the text of the act.” Guaranty
In Trust v. Co. States, United 304 US L 126, 132, ed 58 S Mr. Ct Chief Justice (then Justice) quoting Mr. Stone, after from United Hoar, v. States said:
“* * * Regardless government of the form of independently royal prerogative once thought justify support- sufficient to it, the rule is advantage able now because its benefit and extend every including citizen, defendant, whose plea precludes; laches limitation it and its *5 54G in the been
uniform survival United States has justified generally grounds on accounted for any upon policy the notions of rather than inherited [citing king cases]. personal privilege of the acceptance complete that the im- been its So has immunity ‘sovereign,’ plied of the domestic universally deemed to be an national, has been exception the local statutes of limitations where to government, expressly is in- state or national, Conformity to Act.” cluded; and rule that the statute limitations does not by apply several times affirmed to state has been supra, Lee, Land v. Thus, in State Board this court. relating holding to the statute of limitations that
mortgages Land in a suit Board, did not bar State mortgage given a to board foreclose note to money school loan of out of the irreducible to secure a (84 434): the court said Or fund, terms, it a rule universal in broad is “Stated government
recognition a or said not included in that the expressly general unless it is statute of limitation necessary implication rule is included. This legal expressed upon fiction be founded regi. tempus maxim nullum occurrit How- necessary salutary predicate this ever, it is not upon precept since reason for sound fiction, a matter of found in the fact that as rule is necessary preserve public policy it injury property rights, and loss revenues negligence officers.” Valley Co., 56 v. Warner Stock Or also, State See, Fidelity Deposit P 108 & 780, 861; 106 P 283, 308, Maryland Portland, Company Bank 117 v. State Day P Celoria, 250, 116 241 58. 823; P v. Or 9, 242 1,Or sovereign principle “a is not bound And, expressly named,” it is of a statute unless the words not within the state is has held that the this court regulating of interest purview the rate law
547 Hoyt, (Seton v. 266, 273, 34 Or P 43 LRA 641), Rep giving priority Am or of a St statute (State Campbell, to tax liens v. Land Board Or 346). 196, 13 P2d has held Further, been preference priority payment
state has a being out of effects of an debtor, insolvent one prerogative rights of the British to which crown the state has succeeded. United States F. & G. Co. v.
Bramwell, 108 261, 271, 829; Or 217 P 32 ALR Fidelity Deposit Company Maryland & v. State Bank of supra. Portland, general dispute
As rule, is no there between presented counsel, both of whom have the case with ability They and commendable candor. differ on the question recognized whether the case falls within a exception, Chitty Prerog- thus stated in in his work on page atives Crown, 382: general clearly though “The rule is that,
King may provisions any avail himself of the by Acts of Parliament, he is not bound such as particularly expressly not do and mention him. To rule, however, there ais most ex- important ception, namely, King impliedly that the bound passed public good; statutes for the the relief poor; general learning, advancement of religion, justice; prevent injury fraud, or to * * * wrong. But Acts Parliament which abridge Bang preroga- Avoulddivest or of his slightest tives, his interests or his in remedies, degree, do not extend to or bind the King express unless there be words to that effect.
* # # directing “And in statutes, mere indifferent performed that certain matters shall be as therein pointed thereby King many out, the is not in- prevented adopting stances a course, different pursuance prerogative.” of his Hamburg-Amerikanische The contestants cite United v. States Packe 212 F Gesellschaft, Actien tfahrt (CA 2d). question The there was whether the United States was bound statute the federal known as the Liability liability provides Act, Limited which that the any of the owner or owners of vessel for loss collision shall in no ease exceed the value of the interest of such or owners of such vessel and owner freight pending, her then if the that, whole freight ship and her shall not be sufficient to make they compensation to those who suffer the shall loss, respective compensation proportion their receive against filed a States libel losses. United damages by the to recover caused owner of vessel the re number of sacks mail when total of a loss spondent’s with another sunk in a collision vessel was that, contended under the States vessel. The United apply principle did invoked, the act here government, the full amount could recover previously regardless entered decree of its loss liability pro proceeding for limitation in a *7 already presented should be all claims not vided that had made no claim The United States forever barred. by period fixed the court. no within the
and filed suit quoting Appeals, after the Court of The Circuit Chitty refer- set out and after from above statement the enunciate same authorities which to other ence general that statute exception rule, the held to the notwithstanding government government bound exception, since it came within named; not that was purpose primary was of which statute, the it awas by nation promotion welfare of of the “the capital encouragement invest in the build- giving ships navigating commerce ing so that the might developed.” the United States be The court said: “* * * public purpose legis- If the clear, lative intention is not to be defeated the fact may private the immediate benefit * * * controlling individual. The motive en- of the general good country actments was the of the as a (212 47) F
whole.” distinguished Liability The court the Limited Act ordinary statutes limitation, which were said repose to be “for the benefit and of individuals and general objects policy not to secure and morals.” It referred to the fact that in United v. Hoar States Story “repudiated Mr. Justice the idea that ex- emption government operation of the from the of stat- preroga- utes of limitation rested the notion of the principle tive.” The court said: “He based it on the preservation public from loss negligence Any officers.” other construc- placed tion than the one оn the Act court, greatly was said, “would diminish the value and effi- ciency largely of the act and defeat what we conceive lawmaking body been have the intention of the the nation.” (DC SDNY),
In F Florida, United Judge Hough States District likewise held that Liability Limited Act for the benefit of commerce and therefore for the benefit, and that it bound the United States. After a reference to the authorities, he said: necessary guid- “It therefore becomes under the highest
ance of the court to examine statute limitations, whether limitation be a contrac- rights, tion of time a restriction of to ascertain prerog- whether statute is obnoxious power republican governments ative or either *8 national, state or but whether the restriction of the 550 public applied good that when statute for the sovereignty people’s embodiment of the which the
power.” He concluded: sug- litigation it is neither nor “In this shown government pro gested accepting that its the proceeds of the is suffer- rata share of the Florida ing negligence or default of of its from the (viewed employes. The claim made from officers declaring standpoint inapplicable the act the the clearly upon prerogative government) rests position my ground only, for such a and that has adopted by any judgment American never been ’’
court. opinions cite The in these two federal cases both L ed 1 O’Neil, 325, v. S 272, 196, Fink US Ct of Wisconsin, a statute which ex- holds that which applied empted execution, homestead from sale on a judgment issued favor to an execution in a said States federal court. The court the United by undoubtedly be held it would courts by exemp- state would be bound the state that the appropriate an States, held that the United tion, and legislative adopted act, had the law Wisconsin quoted exemption. creating court United Knight, L ed in which 39 US v. States tempus: respecting “The maxim nullum was said public ground great principle policy, which real is a public governments, belongs inter- to all that the alike negligence public prejudiced est should not be they confided,” to whose care are officers, only regulate proposes statute “which when proceeding divest does not suits, mode of any principle any right, not violate does contrary, provisions in policy; accord- makes on but government policy has indicated with ance legislation, many previous to conform acts of
551 persons giving imprisoned laws, under their jail-limits; privilege execution, of we shall best carry legislative by construing into intent, effect the at the executions of the States, suit United to be within embraced the act of 1828.” opinion
The concludes: Magdalen College Case, “In 11 Coke, b, referring Berkeley’s Case, Lord to Lord Coke, Plowd., 246, declares that it was there held that King bound Statute Bonis, Be I., because, Edw. for other ‘It an reasons, was Act preservation possession of of the of noblemen, gentlemen others,’ and and ‘the Act,’ said he con- King only, tinues, ‘shall not bind the he took where capacity, an estate in his natural the heirs male of his as to him and body, but also when he claims King by prerogative.’ By an inheritance as his parity reasoning, public of based on the declared policy People Sovereign, States, where the are the preservation laws which are Acts of of the of the home family, supposition exclude the ad- thought interest, verse hostile to humane because none can be brought that, and the case is within the exception public good that identifies private right, with the and declares ‘That provide necessary profitable statutes, which remedy religion, for the maintenance of the ad- good learning vancement the and for the relief of poor, generally according shall be extended promise words;’ their civilization has no that is not nourished in the bosom the secure and well household.” ordered grounds
It will be seen one that of the of the de- passed cision was the law was “for the relief poor.” Hamburg-Amerikanische Like the case Chitty’s and the case of The Florida, it falls within exception passed public good.” of “statutes for the
The rules of construction in cases this kind are an eminent on authority statutory
thus summarized interpretation: “* * * only divesting follows that It is to be re-
or not divesting any public right of principles but also the violation garded, case test, therefore, every policy. is in- government whether not the question a statute has to be met
cluded in the language determined, rule, be a mere general cannot but way another, arbitrarily applied, either one object enactment, purposes must be the it is to is to serve, remedy, the mischiefs it with consequences follow,—starting are *10 that, natural primarily, the fair and presumption the rights Legislature legislate upon intended only. and affairs of individuals This is the only of and rule against extent application proper of Endlich on government.” Interpreta- inclusion 232, tion of 167. Statutes § attention
The contestants call our to the cases of Peoples Hydro-Electric ex v. West Coast State rel. ex and State rel. 479, 583, 129 P 475, 278
Corp., Or Hawk, are v. 319, 709, 208 P said to 334, 105 Or which gen- for the the water code is view authority be commissions. to state and erally applicable departments pro- a condemnation The former of these eases was the state the relation of ceeding by commenced for game commissioners, board of fish and certain in Hood River land purpose condemning with hatch- County for use in connection propagation, fishes. In of salmon and other food ing feeding it would order to use land for the intended purposes interfere with the water of necessary have become Herman Creek. an
In act General legislature (ch 1915 the passed which 1915), provides: Laws of Oregon 1. The streams waters following
“Section near, of, waterfalls in view or forming thereof Highway, Sandy River River to Columbia appro- River, are Hood priation herewith withdrawn from condemnation, not diverted shall interrupted any purpose except or as hereinafter for whatsoever, [naming mentioned, to-wit certain including streams, County]. Herman Creek, Hood River prevent “Section 2. This Act shall not the con- public park purposes any demnation for through lands any of which said streams nor flow, affect rights rights riparian proprietors vested in, of such lands or streams.” or to the waters said creeks plain The court held that this act awas revocation authority for the condemnation of land connec- bordering upon tion with or the streams mentioned judgment in the act, and reversed a in favor of the plaintiff.
In of the act of 1915 was amended ch Oregon 373, General Laws so as to read as follows: prevent “This shall act condemnation public park purposes any through lands [affect] of said streams nor flow, effect rights riparian proprietors
vested or the of such in or lands to the waters of said creeks or *11 prevent streams, nor shall it the condemnation of any through lands flow, which of said streams purpose establishing, maintaining for the of and operating thereon salmon fish work, culture nor prevent shall this act the fish commission of the Oregon appropriating any from of said provided, waters for fish culture work; however, that no shall waters be taken from above falls the Oregon in the streams mentioned in section 7113 Laws.” legislature
At the same session of the at which the 1915 act was the manner above stated, amended
554 § 83-204, enacted now OCLA
there also what is was gave [Oregon (c)], §5 1921, ch 105, Laws authority power so “full to use fish and commission may be its as much of the state funds under control rights acquisition necessary and land, for the (italics property” added). and other easements com- as amended in now act, 1921, The 1915 thus prises §§ amend- After the 116-470, 116-469 OCLA. Peoples v. West Coast
ment, in case State ex rel. enjoin Hydro-Electric Corp., supra, the state sued to diverting of Herman the waters defendant question priority was one of Creek. The parties suit. dis- court in its between of the state said: cussion of the claim * * “* Although the state made use operation Herman of its waters of Creek hatchery time in 1915 for the first and has continu ously acquired since said time, used the same by appropriation no to the water because assembly, legislative Chapter 36, Laws an act of the L., now Sections 7113 1915, 7114, Or. flowing certain streams into the Columbia waters of including Creek, Herman were withdrawn River, from to prohibition appropriation held was applicable Fish to the State Commission (208 Hawk, 709, rel. v. Or. Pac. State ex 607). against This bar statute Pac. by Chapter was Fish Commission withdrawn State application no but was made Laws permit Fish for a Commission State appropriate such until 15, 1922, waters November granted permit to the State Fish Com when a Engineer appro State to make such mission priation. upon facts, Because of these it was admitted argument acquired the state had no by appropriation legal right waters Her 15, 1922.” until November man Creek *12 bearing respects have a In two these decisions on They present question. an illustration afford, first, general of a statute drawn terms which did not mention the but which held nevertheless to state, immunity general bind the state. rule of state legislation was not discussed either the briefs or opinion of the court in the Hawk case. Neverthe- legislative prohibition against less, the decision that the appropriation the condemnation and of the waters applied necessarily Herman Creek to the state, must regarded holding be as a that the statute fell within exception some rule. Second, to the these de- agency cisions further indicate that, when exercising power granted legislature, to it appropriate undertakes to of the waters of the pursuant provisions do so state, must controversy private water in a code, with a subject owner of water the state is same rules govern rights private litigant. of law that probably And, while it is true that there is now no may appropriate statute under which the state water irrigation purposes, it is also true that the state may, ap- in become the owner of an instance, propriated right by succeeding ownership appurtenant. the land to which the water is It dealing. that kind of a case with we are distinguish Effort is made to the statute construed in the Hawk case from the statute with which we are language here reference to the concerned prohibition is said to all in- former, the of which be language No 116-437, clusive. But so the OCLA. comprehensive employed been terms could have
more basis, than use shall the measure “Beneficial of all to the use water in this the limit Generally argument speaking, however, state.” of this point, question is beside the because the sort whether exempted application state is from the of a statute *13 by tempus only reason rule of the nullum can arise language enough when the is statute broad judicial It then the state. matter of include interpretation, becomes principles under the dis- heretofore cussed, to determine whether or not that rule tois applied. be argument irrigation might
The
districts
lose
question
for
their water
if the statute
nonuser,
applicable
entirely
should be held
to the
is
state,
beside
irrigation
point.
quasi-municipal
is a
the
An
district
Ager,
corporation.
v.
Central
Co.
Or
Pacific
agency
state,
who pitable ing pioneers, These western emulat- solitudes. gone many spirit others who had be- of so ventures, faced the difficult them in similar fore problem from the creating wresting living homes them, about and threw down the raw elements gage im- the forces of nature. With of battle to they perfect con- dams, canals, built excavated tools, plowed soil, and and cultivated the ditches, structed dry green and desolate lands into fields transformed and leafy effort, In the of that success orchards. greatly government itself was concerned charged only owner, because, was —not duty disposing through Congress with the development the settlement because lands, but lay country highly the lands in which desirable.” question, failure of “the the statute
Under right” developed perfected a owner *15 period appropriated for a of five suc- water use the right, yeаrs the not for forfeiture of a works cessive in the case of an individual as benefit the ordinary this is not-—but limitations—which statute public, end that the “water to the the benefit for again public and become right to the revert shall by provided appropriation subject in tbe manner words again, clear as is a statement Here law.” policy the statute. behind make it of the can provision special excepted, and towns are Cities anticipate their of their need to them in view made for population. growth supplies because of of water Ordinarily, this omission mentioned. The state is not presumption significance and the would be without legislature are meant applied that “acts of the would be regulate of citizens.” and direct the acts supra. of the view Hoar, But, v. United States Hydro- Peoples Coast v. West decisions State ex rel. pur Corp. Hawk, and the rel. v.
Electric and State ex pose legislation, held must be that it of the we think apply failure water state. The to the waste put agency use to beneficial of an of the state good injury similar than a the common less an is no by private of 116-437, The terms individual. waste right held of the a condition constituted OCLA, predecessor Lowe; and, Robert C. interest, state’s ownership land state succeeded to his when the right, appurtenant it burdened it took and its imposes obligation the statute with obligation right subject loss of thе should only acquired, and could fulfilled. The not be acquire, And it became himself owned. what Lowe capacity right, in its as trustee not of the water owner special capacity public, incident to in a but through agencies, discharge one of its duties, of its State Aid Act. Veterans under the War World place construction we under the that, true It is portion may occasion lose the state on this act, of its officers to use failure revenue only statutory period. during “not But any public right divesting divesting *16 regarded, principles to be but also the violation of of ” public op. policy. public policy Here Endlieh, cit. any and other manifest, construction would tend value and
to diminish the of the act defeat what legislature. we be the conceive to intention Hamburg-Amerikanische United States v. Packetfahrt supra. Actien Gesellschaft, opinion Our conclusion accords with an at- request torney general, rendered at the of Charles E. secretary of the
Stricklin, State Reclamation Commis- engineer, September sion and state under date (Biennial Reports Opinions Attorney and of the p. 48). Presumably General 1942-1944, the state offi- charged responsibility administering cials with upon opinion, the Water have acted Code thus bringing support to the view we take the added weight of administrative construction. reargument attorney general,
Prior to the at request prepared court, filеd a brief given For the aid thus amicus curiae. us the attor- ney deputy general express his the court desires to appreciation. its affirmed without decree is costs disburse- parties.
ments to
HAY, J., SPECIALLY CONCURRING. majority opinion
I concur in the Mr. Justice rely doing expressly I In so his conclusion Lusk. (% OCLA) 116-437, statute which
that the effects loss of right by put a failure of the owner thereof to period use for a it to years, beneficial five successive applicable obviously such statute state, public having passed good for the been policy being expressive legislature,
relation the nse of the waters. The adopting gave particular recognition, that statute, importance it seems to me, to the tremendous it attached to the conservation of such en- waters couraging discouraging their beneficial use and their nonuse. *17 present
It is be remembered ease years, absolutely for .state, 13 consecutive failed any application question to make of the waters in years’ a beneficial use. Five nonuse bars all say under the statute. To that, after nonuse of the years, may 13 the state assert an absolute against intervening appropriator, thereto as an saying may is tantamount to that the statute never be against England invoked the state. Even in the rule may is not absolute, so for there such a statute not pleaded by sixty years. the Crown after 3 B1. Com. 307; Crown Suits Act, III, c. 1769, 9 16, Geo. as amended by Crown Suits 24 Act, 1861, and 25 Vict. c. 62. position I
However, take the that in event the tempus regi, application maxim, nullum occurrit has no to the case at bar. 116-437, Section OCLA, a statute of limitation but one of forfeiture. A statute only remedy, right; of limitation affects not whereas the statute under consideration forfeits the very right itself. equity, pleaded,
Courts of even where laches is not may withhold relief from those who for an unreason- delayed time have able the assertion of their claims. Wood, v. 164
Willard
US
17
L
502,
176,
S Ct
41
ed
neglect
531.
has
Laches
been defined as “The
to do
what in law should have been
for an
done,
unreason-
unexplained length
able and
of time and
circum-
under
permitting diligence.”
stances
Sullivan,
Babb v.
43 SC
436,
562
diligence powers is essential to call into action the equity.” Equity, § a Am Jur 490. 339, court 19 imputable against The doctrine laches is long is one to this court been has com- Valley 56 Co., 283, mitted. State Warner Stock Or v. Hyde, 780, 106 P 108 P 88 Or
304, 861; 1, State v. 40, P169 171 P ex rel. v. District 757, 582; State School 9, 31 P2d P2d 287, 751, 179; No. Or State 441, 461, ex rel. v. No. School District 179 Or P2d 655. present interest cases like that,
made evident when one considers in semi-arid regions, irrigate failure will in the reversion result appropriator But if another of meadow to desert. land puts use in the irri- the abandoned water to beneficial gation meadow, and, of his the desert becomes land, place homestead, of deserted and abandoned new highly A existence. desirable homestead comes into exactly рolicy it is not subserved; has thus been *18 is water, involved; waste land that waste but of old and and it seems to me that the assertion aban- rights, by circumstances state, doned even such by against policy and barred and should is be laches. “Although do not run statutes limitation yet against government, the staleness may in determin be taken into' consideration claim equity question
ing
interfere
a
should
whether
court
grant
States,
relief when the United
person
complainant.
is
When
a
a
as natural
as well
equity
comes into a court
the United States
subject
peculiar to
to the defenses
suitor,
a
it is
P
White,
17
that court.”
States
United
v.
Hyde, supra,
approval
quoted
88
with
State
v.
1, 40, 169 757,
563 jura Vigilantibus subveniunt. non dormientiibus ac diligence my opinion, lack of was barred the state In any rights asserting the use premises to from in the grantee question, in no better and its of the water in position. DISSENTING.
TOOZE, J., agree the result reached I am unable to with opinion cited and the authorities of the court. Under opinion, quoted I feel that the conclusion in that from by implica- inescapable not, should that the state provisions of 116- bound be deemed be tion, 437, OCLA. opinion attention to two court in its directs Peoples rel. v. West
decisions of this court: State ex Hydro-Electric Corp., P 475, 479, Coast Or Hawk, 319, 334, v. 208 P 583, and ex rel. Or State says: the court decisions, 709. As to those bearing respects “In these decisions have a two question. They present afford, first, on an illus- general
traction of a statute drawn in terms state, but which was held never- did not mention im- the state. The rule of state theless bind munity general legislation was not discussed opinion either in the briefs or of the court Nevertheless, in the Hawk case. the decision that against legislative prohibition the and condemnation appropriation of the waters of Herman Creek necessarily regarded applied as a state, must to the holding that the statute within some ex- fell ception Second, rule. these decisions agency that, when a further indicate exercis- granted legislature, ing power a to it under- appropriate of the waters of the state, takes it must do water pursuant provisions so controversy private code, and that with *19 subject the state is to the same owner water govern rights private rules law that
litigant. (Italics added.) light An examination of in those decisions legislation dealing other with the use of in this water they support state convinces me do the con- by clusions reached the court. It is true that some state agencies, appropriating required in are follow water, procedure general, by the same are and, bound regulations applied same are to individuals and private corporations. spe- But this is force of by implication, nor statute, cific words of the and not interpretation. of court because (1919),
At the time the case commenсed Hawk was (§7089, Laws), Oregon what is now §12-302, OCLA part provided: necessary it is that the “Whenever state Ore gon require any property, shall water, real water any riparian rights, right and water and courses, or interest * * * any public therein, use, for he * * * attorney general] [the shall commence jurisdiction, prosecute competent court of Oregon, any necessary the name of the proceeding appropriate action or for the con suit, * *-* watercourses, water, demnation said water rights required purposes riparian for said so * * * " part section is now a of ch. title 12, OCLA,
This relating of eminent domain to the exercise municipalities. It first counties, state, Oregon adopted in 1905: ch Laws 1905. Section (§7091, Oregon Laws), relates 12-304, OCLA municipalities. counties and authorizing condemnation of 12-302,OCLA,
Section provision contains no state,
565 under of waters appropriation the appropriation laws. in out in the court’s opinion,
As pointed Laws 1915, assembly 36, Oregon ch adopted legislative 7113, Oregon became of which act § the first section and the second section §116-469, OCLA), Laws (now 116-470, Laws Oregon (now § became I again quote For of emphasis, OCLA). purpose in that statute part: streams and waters thereof
“The following near, in view or the Columbia forming of, waterfalls River, from River to Hood Sandy River Highway, con- or hereby appropriation are withdrawn demnation, and shall not be diverted interrupted whatsover, except as hereinafter any purpose for * * * * * * All mentioned, Herman Creek. to-wit: in Hood River County.” (Italics added.) in
All of the creeks mentioned said act flowed in river vicinity highway, of the Columbia one of This highway most scenic in the world. highways well for citizens. Pres- tourists, mecca for as as our own im- its scenic is a matter of beauty high ervation of the state. That was the of the act purpose portance in question. observed that this statute expressly pro-
It will be in- hibited the exercise of the of eminent domain right concerned, sofar as the waters of Herman creek were condemn. an no matter who was It was attempting state, limitation vested in express power and counties, municipalities provisions §§ and Laws, other Oregon quasi- similar statutes. It was just public corporations name the state unnecessary specifically statute to name munici- counties, as it was prohibitory It was unneces- corporations. palities, quasi-public sary because the words statute are all-inclusive. of Herman The waters creek were “withdrawn from * * * appropriation any purpose or condemnation (Italics added.) Those words,
whatsoever.” when light high purpose considered of the act, certainly enough only are broad to not include the quasi-public corpo- also all other state, but enjoying the of eminent domain, rations and to prohibit appropriation as wеll as condemnation. though pointed
As out the Hawk decision, “the *21 power domain of eminent is inherent state, yet it until called lies dormant into existence ex- authority.” legislative press Oregon Section 7089, legislative authority granted Laws, was the for the right Oregon § the state, exercise of the and 7113, legislative placed upon Laws, limitation was such right. pertinent provi- connection,
In this it is to note Oregon they § 7114, Laws, sions as read at of the time of Hawk case decision: prevent “This shall not act the condemnation purposes any public park through for of lands any flow, of said streams nor
which affect vested rights rights riparian proprietors of of in, or to the waters of such lands said creeks or streams.” incorporated towns, cities and
Outside estab- largely, public parks wholly, if lishment of beauty function. To enhance the of, state and interest highway, river in, the Columbia established along public parks running with same, waters appurtenances highly important excep- thereto. The exception into this tion written act of 1915 was an to Oregon prohibition. § and its blanket 7113, Laws, Its the state purpose retain sole park pur- appropriate agencies for and condemn its indicating clearly intended poses, it was thus Oregon apply should to the state Laws, exception would Otherwise, as all others. well necessary. not have been opinion gist the Hawk case of the court’s page found at аs follows: [§ 7113, “It to us that act of 1915 Ore- seems authority
gon plain for is a revocation of Laws], with, or land in connection the condemnation of bordering act. the streams mentioned in the * * * Oregon Laws] did not [§7089, The statute proceeding.” authorize this condemnation legislature Oregon § 7114, In 1921 the amended appears §in as it OCLA, to read now Laws, 116-470, to~wit. prevent “This act shall not the condemnation public park purposes any through lands any flow, of said nor [affect]
which streams effect rights riparian proprietors or the vested such lands in or to the waters said creeks prevent nor the condemnation streams, shall any through said lands streams *22 establishing, maintaining purpose the flow, for of operating work, salmon culture thereon fish prevent this the fish commission of nor shall the state act Oregon appropriating from said of of provided, however, work; culture waters fish for falls no shall be taken above the that waters Oregon in section streams mentioned 7113 of in the Laws.” (Italics Chapter Oregon 1921. 373, Laws added.) perfectly this was obvious that amendment It objections adopted sustained the Hawk to meet Manifestly, purpose was to restore to the its case. Oregon through, right
state its fish commission the respects particularly eminent domain men- right pursuant such to be exercised tioned, under and provisions Oregon § what then was 7089, Laws. exception Furthermore, contained in this act resрecting waters above the falls the streams men- Oregon conclusively tioned in 7113, Laws, shows purpose that act was that as stated above. language respecting used
Moreover, the appropriate of the fish commission to waters fish clearly part culture work indicates an intent on the subject legislature the fish commission to provisions regarding appropria- water code respects rights tions water. Condemnation as water thing; appropriation, By is one a rule, another. protected. power act, vested are Under its through domain,
of eminent the state, its fish commis- might rights, over vested sion, take but it is destroy appro- clear that could not them mere priation. recognized
This court the case of State ex Peoples Hydro-Electric Corp., supra, rel. v. Coast West page opinion, when, at 479 of the it said: “ * * * against This bar the statute the State Oregon [ch. 1915] Fish 36, Commission Laws was by Chapter 373, withdrawn Laws but no application was made Fish State Commis- permit appropriate sion for such waters until permit granted 14, 1922, November when Engineer the State Fish Commission the State appropriation. to make such facts, Because of these argument was admitted
it had acquired legal right by appropriation no Herman until waters Creek November 1922.”
569
an-
amendment,
of the 1921
Following
adoption
court,
other condemnation
came before this
prоceeding
v. Mohler
State
of Herman creek:
waters
involving
al.,
et
P
“It will be observed that to the amenda- prior tory act, land said streams flowed through which could be only. took to vest priate appropriated public park purposes in under- legislature, its session of commission fish power appro- ”
such land for ‘salmon fish culture work.’ In the Mohler case the the state to condemn was upheld.
In State ex rel. v. West Coast Peoples Hydro-Elec tric the use of the Avaters of Herman Corp. supra, creek was in involved question but again dispute, entirely Avas foreign legal problem presented In just in the other two decisions commented upon. case,
this latter use Avas question priority suit by Oregon issue. The was instituted state of on relation of the fish commission to restrain the diver Herman defendant. The sion of waters of creek defendant had appropriated, record disclosed that interest, its the use of certain through predecessor waters Herman for power pur creek quantity had acquired legal before the fish commission poses thereof. The waters, any part and to such rights vested, being of defendant had become rights subject only way non-user. The only defeated
could the use of such vested acquire prevent under its power condemnation proceedings eminent domain. page
However, its decision the court at did, *24 following make the statement:
“* * * Although the state made use of the
operation
in
waters of Herman Creek
the
of its
hatchery for the first time in 1915 and has continu-
ously
acquired
time,
used the same since said
it
right
by appropriation
no
to the water
because
legislative assembly, Chapter
an
36,
act of the
Laws
1915,
7114,
now Sections 7113 and
the
L.,
Or.
flowing
waters
certain streams
into the Columbia
including
River,
from
Herman Creek, were withdrawn
appropriation
prohibition
and this
was held
applicable
to be
the State Fish
to.
Commission
(208
Hawk,
State ex rel. v.
This statement must be and considered light issue then of the before the court. When history purposes legis- we bear mind the and of the respecting lation these matters, and all-inclusive certainly properly used, words cannot be maintained legislative prohibition that “the decision that against appropriation and condemnation applied of Herman Creek state, waters to the neces- sarily regarded holding be as a must the statute exception general (Italics within to the some rule.” fell added.) Clearly, the state was not included within the prohibition implication only; no more so than all corporations, persons private. other and just comparison There is no between the direct and prohibition § Oregоn contained in all-inclusive provision § reading Laws, and the of 116-437, OCLA, “Beneficial shall as follows: use be the basis, the and limit of all measure use of water in provision this latter state”, when is considered in legislation light part, and, which it is a particular, light purpose. its It must be part OCLA, is 116-437, in mind that borne largely appropria- relates law which corporations. by private persons It tion of waters appropriators whom act refers is those appropriators purpose applies. see that these Its use at the waters, and continual make beneficial forfeiting for non-user. their to others risk of sovereign capacity, distin- state, The in its guished agencies created, it has neither any pur- appropriates state for nor uses waters pose. importance will later of this observation developed. quite statutes
An examination our discloses every clearly the state has been that, in instance where *25 legis- water, in the use or control of interested specific adopted laws in relation thereto. lature has necessary agencies created, been and Different have appropriation powers of and have been condemnation Legislation respecting the Fish and vested in them. only is one illustration this. Other
Game Commission (1) Drainage examples Flood Control, relate to and Projects, (2) 118, OCLA; Water title OCLA; title 117, Projects, (4) Irrigation (3) 119, OCLA; Powеr title Drainage Diking Projects, (5) 120, OCLA; title (6) Districts, Districts, 123,OCLA; title Flood Control Irrigation (7) Districts, 124, 125, OCLA; title title as In insofar the state’s connec- words, other OCLA. legislature concerned, matters
tion with water nothing imagination implication; spe- it or was left to cific. that, the other to be observed in hand, it is
On authority relating veterans, loans no to to war laws agencies authorized to administer vested the state acquire by provisions condemnation or thereof, to appropriation waters or Avatercourses the state irrigation purposes, Art. XI-C, otherwise. Ore- gon 1, ch art 1 Const.; to title inch, OCLA; general, relating 106, OCLA, title to the State Land particular, relating Board, and, 106-201,OCLA, powers specific Land Board. State making In loans to veterans, no discretion is vested except appraised as to determination of the property security value of the offered as and a few other matters material to this discussion. The state governmental strictly capacity pursuant acted in its Upon repayment constitutional mandate. default in loan, it was forced the law to foreclose the mort- gage accept a deed to the land. In such circum- implied legislature stances is not to be that the in- right appurtenant tended the state should lose a water compelled accept security to land it for a right perhaps forming principal loan, the water land, value of without which the land would practically respecting valueless. What is said vet- applies equal, greater, erans’ loans with if not force to loans the State Land Board school funds. Is school fund irreducible to suffer loss for non-user right appurtenant the State Land of a Board acquire to land it been has forced to on title to fore- proceedings? closure appropriate again think
I it here invite attention quoted opinion to a case cited and from in the *26 court: Land v. Lee, State Board 84 Or 431, 434, 165 P page At 372. this court said: terms, in “Stated broad ais rule of universal
recognition government that the is in included general expressly a statute of limitation unless it is by necessary implication included. This rule is upon legal expressed said to be founded fiction nullum, tempus regi. in the maxim occurrit How-
5T3 salutary necessary predicate this to is not ever, it any sound reason precept since fiction, aas matter in the fact that rule is found preserve necessary public policy it is injury property rights, loss revenues from * * (Last negligence officers ours.) italics pertinent that the fact must not overlook the We § prohibitory whereas, 116-437, act; 1915 is a act of provides for a forfeiture. OCLA, § OCLA, was 116-437, made note above that
We relating appropriators part law be found contention is to water. Some basis for this OCLA. 116-426, of the water code: another section engineer requires оf the law This section applicant for a water issue a certificate to perfected appropriation in accord- been when the has provides: ance ít then with the law. * * “* acquired Eights use of water provisions forth in act, of this as set
under the certificate, in the owner thereof shall continue such applied long to a beneficial such water shall so of said with the terms under and accordance use subject only speci- loss nonuse as certificate, fied * * provided Section 116-437 the fact that is made of Further observation many only (§ Oregon Laws) is one 1915 law specifi- type, the state is in none of which of that laws cally pro- the words but in all of which mentioned, §§ 116-464, 116-462, 116-461, all-inclusive. are hibition example, § 116-464, For OCLA. 116-466, 116-468, reads as follows: OCLA, hereby Haek- provided that the waters of “It Sandy tributary river and which creek, ett together county, Oregon, located Clackamas *27 with the tributaries of said creek, Hackett shall be appropriation withdrawn or condemnation and from interrupted any pur- shall not be diverted for
pose except purpose pro- whatsoever, for the tecting Oregon game fish life therein state (Italics added.) commission.” exception Section 116-465,OCLA, makes an to the prohibition § rights contained in 116-464,as to vested park purposes. and for condemnation prohibition contained 116-462, OCLA, re-
lating county, to the waters of Silver creеk, Marion Curry county, and Brushes creek, in inis much the exception same words, and no is made in favor of the though exception fish commission, there an as to park purposes. vested and condemnation for as Just there is no real foundation for the court’s respecting first conclusion the effect of the decisions Hydro-Electrie Corp. in the Hawk and cases, neither implications is there sound basis for the contained in its second conclusion, viz.; “these decisions agency exercising further indicate when a that, state power granted legislature, to undertakes appropriate any of the waters of the state, it must pursuant provisions do so to the of the water code.” conclusively An examination of the statutes will show agencies subject appropriation that state are laws, virtue of those decisions, but because of specific relating powers. laws to their creation Every agency, subject appropriating water, is general appropriation laws as to the method appropriating priorities. applies to This irrigation special cities, towns, districts, and other agencies by legis- created, authorized to be created, lative act. many provisions
However, the water code contains operations limiting must which certain the time in continuing permit for for as a commence condition permit appropriation waters. Cancellation irrigation comply. penalty But failure to excepted corporations municipal are districts *28 provi- provisions. § But 116-430, these these OCLA. permits, of and to final certificates
sions refer to appropriation. significant opinion in seems to deem it
The court its expressly excepted the and from towns are that cities provisions whereas, the state §116-437, OCLA; of specifically for men- the reason not mentioned. When exception recognized, tioning and towns cities significance exception whatever in the re- the has no spects as claimed. cities and are have before towns
We observed appropriation power and with the waters vested express provisions § 12-304, watercourses authority appropriate their waters OCLA. Because private the same foundation as that of indi- stands on necessary corporations, except and it viduals provisions § 116-437, if their OCLA, them from regards protected were be reserves being important presently used, water not but to meet necessary demands the future. and towns are of Furthermore, cities lesser conse- ojuence By mentioning than the state itself. and cities legislature thinking showed that it was towns, good. necessary exemptions state, tempus regi, under rule of occurrit however, nullum exempt. no Hence, there was need of men- would tioning for the act’s it. That accounts omission to phrase alongside “cities and towns”. include naturally words, that, the lawmakers assumed regi, In other tempus occurrit rule of nullum the state under the being exempt specifically would be held without men- tioned. though, that,
It is further to be in a observed tech- nical sense, cities towns are still referred to as arms provisions nonetheless, virtue of state, Const, Oregon (commonly §of art. XI, referred to Amendment), they as the Home Buie are, fact, more sovereignties independent opera- or less and, their subject only tions, are to the constitution and They occupy entirely laws the state. an different status their relation to the state than do counties, irrigation port districts, districts, and other state agencies, such as the Fish Game Commission, Highway Tax the State Commission, Commission, and other boards numerous and commissions created carry purely out functions. Cities and towns state principal powers their derive the constitution; agencies powers the other their stem from *29 legislative act.
If the in court correct its conclusions in this case, necessarily irrigation then it follows that districts, might which are arms of state, the their lose water rights despite importance for non-user, the attached to operations provisions the of such districts the of applicable § OCLA, 125-303, and other statutes. It is irrigation to be observed that districts are not men- exceptions § tioned in 116-437, contained OCLA. operations irrigation indicated,
As districts highest importance. quote part deemed of I are a 125-303, § OCLA: required irriga- use of all “The water for the any
tion of provisions lands district formed under the together rights act, all with water rights appropriate rights way water, ditches, canals and sites for all reservoirs, and other property required fully carrying pro- out hereby act, visions of this use is declared to be necessary more more beneficial than private, other use, either or to which said rights, rights appropriate water, water, water property, may appro- lands or other have been or priated said within district.”
Irrigation districts, well as the Fish and as Game express acquiring power have Commission, water rights purchase, appropriation. condemnation, they they purchase, acquire condemn or "When the water already perfected from one Avhohas it under appropriation They laws state. have choice purchase, appropriation. as between condemnation, Obviously, appropriation there are times when of avail- expensive able waters would be much less than con- purchase, just satisfactory. demnation or as It is agencies might manifest that both these state well acquire rights purpose providing for the sole emergency, reserves for use cases of or for ex- panded operations, and not make use of the same unitl necessity arose. As to these their reserves, needs just great are as those of cities and towns. Is it legislature they the intention of the shall lose years those at end of five for non-user be- they exceptions cause are not mentioned to 116- I OCLA? think not. unnecessary It for me to discuss the several authorities in which the rules applicable this case are forth. are set cited and They commented court, including those
opinion which suggest an I exception general rule. adopt most of the *30 court discussion of the respecting several decisions to which has been directed, attention but I disagree with its final conclusions. same discussion and y argument presented completel justify
most precisely opposite that reached a conclusion I not this comes within court. do believe that case exception rule. adopted
I in the 116-437,OCLA, concede that Every presumably public good. of statute is interests pro- adopted in mind. But I maintain that with that public for the of state’s revenues is also tection presents public good. apparently This a conflict weighed to be in the balance. interests
Although deny may I the state be deemed provision in the contained sec- forfeiture bound now under inasmuch discussion, of the water code tion specifically named neverthe- therein; has not been as it in, question excluding including if the it less, provisions depends of the act decision from the mentioned interests should of the two as to which proposi- determining I factor, subscribe to the conserving principle the state’s tion that rev- important more to the as a whole than enues is of the beneficial use some water. is the assumed loss discounting By I do wish to be understood as not slightest degree importance the vital of water. its use for industrial and munici- However, aside from primarily pal purposes, used individuals particular irrigation use is im- needs. Its portance sections to the arid semi-arid east of mountains, lie the Cascade state, most which irrigation years though it is conceded recent important parts and more some more has become valley Oregon. in western As to the Willamette taxpayer there is revenues, not who the state’s dissipation injuries incident a loss or immune Protecting the revenues is statewide inter- thereof. justified importance. I we are do think
est *31 writing by impli- into into law, law, this other provision may seriously that cation, affect state’s particularly revenues, when, to do we must turn so, long our backs and well established rule that pro- the state is not to be deemed included in an act viding here, a limitation forfeiture such as have we my specifically opinion, unless named In therein. such exclusively legislative is inclusion a matter for deter- accomplished judicial mination. It shоuld not be legislation, pro- I which, believe, is the effect of the posed decision in this case. opinion importance pre-
In the of the court the venting wastage of water is stressed, but it seems to me is I this the issue, beside because do think not adopted forfeiture for non-user clause was for that purpose. express pro- Avater itself code contains designed prevent example §§ For visions waste. 116- appro- 303, 116-409, Further, OCLA. non-user an priator necessarily aof water does not mean that there is or avíII be a waste or loss of beneficial opinion use of the water. The court in its seems to assume that it does. unimportant particular
It is that insofar as this any, case is no if serious, concerned loss of revenue is no matter we threatened, how decide the matter before principle high
us. But the to be established is of im- portance. say precedent What we here will form the action. future Whatever we must do be done Avith eye an that future. opinion question determining
I am the that legislative suggested intent, the court’s opinion, is all not at involved. The statute is unam- biguous. statutory Recourse to rules of construction necessary. interpreted is not The act should be accord- ing plain presumed adopting to its terms. It that, with legislature knowledge did so full statute, rule of law that state would con-
be deemed as included in the limitations therein It that tained unless named. manifest expressly no should be presumption indulged legis- should be lature intended the state’s revenues in- Had it intended that jeopardized. have so.
cluded, the would said legislature expressly *32 a statute, It admitted that in where construing is intention the legisla- construction is the necessary, But 2-217, ture is be if OCLA. pursued, possible. § to is im- statutory this rule of construction no more than rule in provided 2-216, OCLA, § portant in as follows: part reads * * *, construction of a statute
“In is to ascertain and declare judge simply office of the therein, is, substance, in or in contained what terms omitted, what not insert has been or omit to to * * (Italics added.) inserted what has been I dissent. stated, For reasons in this
ROSSMAN, J., opinion. concurs LATOURETTE, J., DISSENTING. case is or not in this whether question
The pivotal to one of the state of successor Oregon, the failure years the water of five Lowe, period use I Lowe, a War said World by theretofore appropriated under 116-437, of it § its water veteran, deprived OCLA. in this case is well- involved
The legal principal Lee, v. Land 431, 434, Board Or State stated P follows: it is a rule of universal terms, in broad “Stated is included that not government recognition expressly statute of limitation unless is it by necessary implication included. This rule legal expressed said founded fiction tempus regi. maxim nullum necessary occurrit How- predicate salutary ever, it precept upon the rule is found in public policy since fiction, sound reason for fact that as a matter of neсessary preserve public it is rights, property injury revenues and and loss by negligence officers.” being nothing expressly There in 116-437,OCLA, providing Oregon by is affected such provision, brought the case is then down to the narrow question of whether not the state becomes affected by necessary implication such section in the interest opined policy. majority opinion It is agencies appro- that certain state authorized law to priate placed category are the same as indi- they, subject viduals, therefore, are five-year premise, aforesaid limitation. From this present is concluded that the state in the case, anal- ogy, subject would likewise be to such limitation. The distinction is that under the veterans’ loan act there *33 authority given is no to the veterans’ commission to appropriate subject. water. The is statute silent on this legislation
Somewhat related to this matter is the authorizing money the State Land Board to loan nothing the irreducible school fund. is There in that legislation authorizing appropriate such land board to § ap- ivater under the water code. If 116-437,OCLA, plies apply to at it bar, the case would likewise State Land Board where loans are made from such person right irreducible fund to a who had a water loan, covered such the State Land Board later ac- quiring property right the such to which water appurtenant. In such a the case, State Land Board’s being irreducible, reducible, be instead of would
fund, thereby greatly be affected revenues would regions right, in some arid without water because, By analogy, the land would be worthless. state, prevailing opin- under the it is obvious that therefore, subject great to loss revenue the state would be ion acquire compelled appurtenant an land with were it regions, right have in the in arid such as we water present had defaulted in their case, where veterans loans. majority dangerous prece- holding is a far-reaching, might lead to disastrous and
dent damaging results. significant exempts OCLA, that 116-437,
It is five-year the limitation. The towns from cities and apparent in that limitation is cities reason for such appropriate water the the and towns have they exempt, and had not been code, under the water having thought legislature the that is it clear that they ordinary appropriators, same status as five-year might Had the limitation. come within the opinion might legislature state been being is limitation, included such it considered as expressly logical it have ex- assume that would judicial empted a thin stretch of con- itself. It seems expressly legislature would to hold that struction exempt and intend to include itself. cities and towns majority opinion “The that,
It stated is controlling whether ‘the factor is determinative general good of the state.” motive’ of the statute argued the bеneficial use of water this, From general public, importance and, paramount is of great since, not utilize the water for does if many years, deprived public being use, there of its public. great detriment to would be *34 preservation revenues the state is paramount importance my opinion,
also of and, greater general public importance alleged than the appropriated loss of the use of water in that the former purse strings touches while of all the only latter affects the limited few water users. regions
It is well-known that in the arid of this irrigation employed, state where the water give to the land
appurtenant value to land, and, practically without the land it, would be worthless, deprived so that if the state were of the water acquired when it the land, as in the instant case, the nearly state would lose the entire loan made to the depression, if veteran, and there would be a the loss might money. run into a considerable amount of Such up taxpayers loss would have be made
state. the other hand, On where the state fails to use period the water over an extended of time, it does not necessarily mean that the water is wasted because, if shortage appropriators there is a of water, the below enjoy lands would the benefits of the water not used the state.
I applies do not believe that 116-437, OCLA, the state in the instant case. I, therefore, dissent.