Green v. Wheeler

Citation254 Or. 424,458 P.2d 938
PartiesMaggie Mae GREEN, Lyle Miller and Jane Miller, husband and wife, Appellants, v. Chris L. WHEELER, State Engineer for State of Oregon; Floyd Oman, Arnold Braat, M. M. McDole, F. F. McDole, Leota Martin, Ernest R. Cramer, Waldo H. Cramer, Mildred F. Cramer and Hansell Bros., Inc., Respondents.
Decision Date18 November 1969
CourtSupreme Court of Oregon

James K. Gardner, Hillsboro, argued the cause for appellants. With him on the briefs were Lee Levenson, Portland, and John C. Caldwell, Oregon City.

Louis S. Bonney, Asst. Atty. Gen., Salem, argued the cause for respondent State Engineer. With him on the briefs was Robert Y. Thornton, Atty. Gen., Salem.

Gene B. Conklin, Pendleton, argued the cause for respondents Ernest R. and Waldo H. Cramer and Leota Martin.

Respondents M. M. and F. F. McDole filed an answering brief pro se.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is a suit for a declaratory judgment in which plaintiffs seek a decree declaring null and void an order of the State Engineer cancelling plaintiffs' permit to appropriate certain ground waters. Plaintiffs appeal from a decree sustaining the State Engineer's order.

On March 29, 1957, G. W. Redwine applied to the State Engineer for a permit to construct a well and appropriate ground water to 125 acres of the applicants' lands in Umatilla County. The mailing or post office address on the application was stated as 'Hermiston, Oregon.' The application was returned to Redwine at that address for some corrections and the application was subsequently sent back to the State Engineer's office with the corrections made.

On May 20, 1957, permit No. G--527 was issued to Redwine for construction of a well. The terms of the permit required that construction commence on or before May 20, 1958, that the construction be completed on or before October 1, 1958, and that the water be applied to a beneficial use on or before October 1, 1959. 1

On Marcn 13, 1958, a Water Well Report was filed with the State Engineer's office on behalf of Redwine by the driller showing that the well had been completed.

In June, 1958 G. W. Redwine and his wife began negotiations to sell the property in question to plaintiffs Lyle and Jane Miller. Representations were made by the Redwines to the plaintiff purchasers that a water certificate had been perfected on the well and that nothing further need be done. The property was sold to the Millers on July 2, 1958. They took possession of the property on July 4, 1958. 2 Mr. Redwine died on July 7, 1958.

Plaintiffs did not record the assignment of the permit as required by ORS 537.220. 3

Not having received the information showing completion of the well on October 1, 1958, as required by ORS 537.630 and by the terms of the permit, the State Engineer, on October 8, 1958, mailed a postal card to Redwine addressed to Hermiston, Oregon, his address of record, purporting to notify Redwine that the time for completion of construction by October 1, 1958 had expired and that Redwine should either notify the State Engineer of completion of construction or request an extension of time. As we have noted above, Redwine had died prior to this time. The postal card was not returned.

On October 8, 1959, another postal card was mailed to G. W. Redwine at Hermiston, Oregon purporting to notify him that the time had expired for applying the water to a beneficial use and that the permittee should notify the State Engineer of such use or request an extension of time or to notify the State Engineer if the permit should be cancelled. This postal card was not returned.

On January 11, 1960, pursuant to ORS 537.260(1), the State Engineer mailed a 'Notice of Proposed Cancellation,' by certified mail to G. W. Redwine, Hermiston, Oregon, his address of record. On January 15, 1960 this letter was returned 'unclaimed' to the State Engineer after delivery had been attempted at two additional addresses at which Mrs. Redwine had resided at various times subsequent to her husband's death in July, 1958.

On August 9, 1960, permit No. G--527 was cancelled by the State Engineer. On August 15, 1960, a postal card was mailed by the State Engineer to Redwine at Hermiston, Oregon stating that the permit had been cancelled. This postal card was never returned to the State Engineer.

In November, 1966 the Millers were notified by the watermaster that they probably would not be permitted to use the water until their alleged water right was 'straightened up.' Plaintiffs Miller and Mrs. Redwine then brought this suit to obtain a declaration of their rights.

Plaintiffs contend that when the State Engineer approved Redwine's application in 1957 and issued Permit No. G--527, Redwine was entitled to appropriate ground water subject to the conditions stated in the permit which, it is claimed, were met when the Well Driller's Report was filed with the State Engineer. It is argued that once the permit was issued and the water was applied to the 30 acres the permittee acquired a vested property right to appropriate ground water, and that the permittee can be deprived of this vested right only if the procedure in ORS 537.720 is followed. ORS 537.720 provides as follows:

'Whenever, after notice to and opportunity to be heard by such holder, the State Engineer finds that the holder of any permit or certificate of registration issued under ORS 537.505 to 537.795 is wilfully violating any provision of such permit or certificate of registration or any provision of ORS 537.505 to 537.795, the State Engineer may cancel or suspend such permit or certificate of registration or impose conditions on the future use thereof to prevent such violation.'

Apparently plaintiffs would contend that even in the absence of such a statute they would be entitled to notice and hearing under the due process clause of the Fourteenth Amendment of the Constitution of the United States and Article I, Sections 10 and 18 of the Oregon Constitution.

We shall first consider plaintiffs' contention that ORS 537.720 is the controlling statute. This section provides for the cancellation of a permit or certificate only if there is a wilfull violation of the permit, certificate, or certain provisions of the water code. However, this is not the only statute providing for the cancellation of a permit. ORS 537.260(1) provides as follows:

'Whenever the time within which any appropriation under a permit should have been perfected has expired and the owner of the permit fails or refuses within three months thereafter to submit to the State Engineer proof of completion of the appropriation as required by ORS 537.230 and 537.250, the State Engineer may, after 60 days' notice by registered mail, order the cancellation of the permit. The cancellation shall have the same force and effect as cancellation of a permit in the proceedings provided for in ORS 537.410 and 537.450.'

Plaintiffs argue that ORS 537.260(1) is applicable only to a case where a permit is issued but no beneficial use of the water has yet been made under the permit; at this stage the right is Inchoate only. They contend that immediately upon the application of the water to a beneficial use the right becomes Vested and at this stage ORS 537.260(1) does not apply, and ORS 537.720 becomes applicable.

The trial court held that the permit was inchoate and not vested until the permittee fully complied with all of the statutory specifications. We agree with this interpretation of the water code. It seems clear to us that the legislative assembly intended the water right certificate, not the permit, even when followed by a beneficial use, to mark the point at which a water right becomes vested. Prior to the water code of 1909 the appropriation of water in Oregon was recognized as a method of creating a vested interest in the waters of a stream. But the adoption of the water code introduced a new concept of establishing one's right to water. All waters in Oregon were declared to belong to the public subject to existing rights (ORS 537.110) and although such waters were declared to be subject to appropriation, they...

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9 cases
  • Fort Vannoy Irrigation v. Water Res. Comm.
    • United States
    • Oregon Supreme Court
    • July 10, 2008
    ...an inchoate right that, although it may allow for water use, does not constitute a vested water right. See, e.g., Green v. Wheeler, 254 Or. 424, 430-31, 458 P.2d 938 (1969), cert den, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 397 (1970) (explaining appropriative right does not vest prior to i......
  • Lane Elec. Co-op., Inc. v. Federated Rural Elec. Ins. Corp.
    • United States
    • Oregon Court of Appeals
    • October 7, 1992
    ...insured." All water within this state, which necessarily includes ground water, belongs to the public. See ORS 537.110; Green v. Wheeler, 254 Or. 424, 458 P.2d 938 (1969), cert. den., 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 397 (1970). Additionally, the right to control ground water belongs......
  • Bailey v. State
    • United States
    • Nevada Supreme Court
    • May 16, 1979
    ...actual notice through certified or registered mail of their failure to comply with the conditions of their permits. Green v. Wheeler, 254 Or. 424, 458 P.2d 938 (1969), Cert. denied 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 397 (1970); Mosbey Irrigation Company v. Criddle, 11 Utah 2d 41, 354 P......
  • North Pacific Ins. Co. v. United Chrome Products, Inc.
    • United States
    • Oregon Court of Appeals
    • July 28, 1993
    ..."All water within the state of Oregon, which necessarily includes ground water, belongs to the public. See ORS 537.110; Green v. Wheeler, 254 Or 424, 458 P2d 938 (1969), cert den 391 US 990 [90 S.Ct. 1123, 25 L.Ed.2d 397] (1970). Additionally, the right to control ground water belongs to th......
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