California Oregon Power Co v. Beaver Portland Cement Co, 612

CourtUnited States Supreme Court
Citation79 L.Ed. 1356,295 U.S. 142,55 S.Ct. 725
Docket NumberNo. 612,612
PartiesCALIFORNIA OREGON POWER CO. v. BEAVER PORTLAND CEMENT CO. et al
Decision Date29 April 1935

[Argument of Counsel from pages 142-144 intentionally omitted] Mr. A. E. Reames, of Medford, Or., for petitioner.

[Argument of Counsel from pages 144-148 intentionally omitted] Mr. W. Lair Thompson, of Portland, Or., for respondents.

[Argument of Counsel from pages 148-150 intentionally omitted] Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is a suit brought by petitioner in a federal District Court for Oregon against respondents, to enjoin them from interfering with the waters of Rogue river in the state of Oregon in any such way as to lessen the volume which flows over and along petitioner's land, and particularly from carrying on any drilling or blasting operations in the bed of the stream or removing rocks or other material therefrom. Following a trial, the District Court made findings of fact and entered a decree denying the relief prayed for, except that respondents were enjoined from so carrying into effect their operations as to reduce the level of Rogue river below a designated elevation above sea level, and in another particular not necessary to be stated. The Circuit Court of Appeals affirmed the decree, 73 F.(2d) 555, and we brought the case here on certiorari, 294 U.S. 701, 55 S.Ct. 507, 79 L.Ed. —-.

Rogue river is a nonnavigable stream; and in its course flows through and between lands of petitioner on the east bank of the river and lands of respondents upon the west bank, the thread of the stream being the boundary between the two. Petitioner's lands were acquired by a predecessor in interest in 1885 by patent from the United States under the Homestead Act, May 20, 1862 (12 Stat. 392). The lands were purchased by petitioner and conveyed to it in 1921. Petitioner is a public service corporation engaged in manufacturing and supplying electrical current to its customers. The city of Gold Hill, a municipal corporation, owns the lands on the west side of the river, and the Beaver Portland Cement Company is in possession of them, together with certain adjudicated water rights and permits issued from the office of the state engineer, under a contract of sale from the city. The blasting complained of was all west of the thread of the stream, on respondents' property, and was for the double purpose of freeing the channel, incident to the use of the water rights adjudicated and permitted, and securing broken stone for a dam to be used in connection with a power plant which the cement company was about to build.

Neither petitioner nor any of its predecessors in interest has ever diverted the waters of the river for beneficial use on the real property or sought to make an actual appropriation thereof. The sole claim is based upon the common-law rights of a riparian proprietor, which petitioner says attached to the lands when the patent was issued to its first predecessor in title.

Petitioner insists that prior to the adoption of the Oregon Water Code of 1909 (Laws 1909, p. 319), infra, the common-law rule that the riparian owner was entitled to the natural flow of the stream across or along the border of his land in its accustomed channel was recognized and in full force in the state of Oregon. Respondents contend to the contrary. Both cite many Oregon decisions and argue the matter at length. But an examination of the authorities leaves the question in doubt. In dealing with cases where the parties making conflicting claims were both riparian owners, the doctrine of the common law seems to have been recognized. Other cases appear to accept what is called a modified form of the common-law rule; and still other decisions apparently enforce the rule of appropriation. It is suggested by respondent that, prior to the adoption of the Water Code in 1909, the policy in respect of water rights was developing and the law on the subject of riparian rights was in a state of flux. There appears to be reason in the suggestion. But, in view of the conclusion to which we have come, it is unnecessary to pursue the inquiry further.

In 1909, the Water Code was adopted by the state Legislature. Or. Laws, 1909, c. 216 (page 319). The act provides that all water within the state shall be subject to appropriation for beneficial use; but nothing therein is to be construed to take away or impair any vested right. In respect of a riparian proprietor, a vested right is defined as an 'actual application of water to beneficial use prior to the passage of this act * * * to the extent of the actual application to beneficial use.' Section 70, p. 340. The Code provides for the adjudication of water rights upon a petition to the state engineer. And any court in which suit is brought to determine such rights may, in its discretion, transfer the case to the state engineer for determination. But no decision of the state engineer is to become final until confirmed by the court designated as having jurisdiction under the act. The procedural provisions of the act have been sustained as constitutional by this court. Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 36 S.Ct. 637, 60 L.Ed. 1084.

The court below held: (1) That the homestead patent of 1885 carried with it the common-law right to have the stream continue to flow in its accustomed channel, without substantial diminution; but (2) that, while this was a substantial property right which could not be arbitrarily destroyed, it nevertheless was subject to the police power of the state and might be modified by legislation passed in the interest of the general welfare; and upon the latter ground the Water Code was upheld and the claims of respondents sustained.

First. The first question is of especial importance to the semiarid states of California, Oregon, and Washington, where climatic conditions in some sections so differ from those in others that the doctrine of the common law may be of advantage in one instance, and entirely unsuited to conditions in another. Probably, it was this diversity of conditions which gave rise to more or less confusion in the decisions, not only of Oregon, but of California, in respect of the subject. We have already spoken of the former; and one has only to compare the decision of the Supreme Court of California in Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674, with Modoc L. & L.S. CO. v. Booth, 102 Cal. 151, 36 P. 431, to realize that the rule with respect to the extent of the application of the common law of riparian rights is, likewise, far from being clear in the latter.

The question with which we are here primarily concerned is whether—in the light of pertinent history, of the conditions which existed in the arid and semiarid land states, of the practice and attitude of the federal government, and of the congressional legislation prior to 1885—the homestead patent in question carried with it as part of the granted estate the common-law rights which attach to riparian proprietorship. If the answer be in the negative, it will be unnecessary to consider the second question decided by the court below.

For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note, 43 USCA § 661, par. 1, and note), the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. Jennison v. Kirk, 98 U.S. 453, 457, 458, 25 L.Ed. 240. The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall. 670, 683, 684, 22 L.Ed. 452; Atchison v. Peterson, 20 Wall. 507, 512, 513, 22 L.Ed. 414.

This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation at the hands of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act 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 courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed. * * *'

This provision was 'rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.' Broder v. Natoma Water & Min. Co., 101 U.S. 274, 276, 25 L.Ed. 790; United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 704, 705, 19 S.Ct. 770, 43 L.Ed. 1136. And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866, provided that: '* * * All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in...

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