Hough v. Porter

• Citation: 51 Or. 318,98 P. 1083
• Parties: HOUGH et al. v. PORTER et al.
• Decision Date: 05 January 1909
• Court: Supreme Court of Oregon

98 P. 1083

51 Or. 318

HOUGH et al. v. PORTER et al.

Supreme Court of Oregon

January 5, 1909

Syllabus by the Court.

Supplemental opinion.

For former opinion, see 95 P. 732.

E.B. Watson (W.J. Moore, on the brief), for appellants.

J.C Rutenic, for respondents Hough and others. Lionel R. Webster for respondents Buick and others. Coovert & Stapleton, for respondent Geo. H. Small. Roscoe R. Johnson, amicus curiae.

KING, C. ^[1]

The principal contention of appellants as first urged was that the court acted without jurisdiction in directing that all persons interested in the lands bordering on Silver creek its tributaries and channels, be made parties to the suit and that such action on the part of the court constituted reversible error. These questions of practice with matters incidental thereto, were determined adversely to counsel's contention (95 P. 732), and the cause was set down for further argument on the main points involved principal among which is that of riparian rights, as affected by Act Cong. March 3, 1877, c. 107, 19 Stat. 377 (U.S.Comp.St.1901, p. 1548) known as the "Desert Land Act." 95 P. 752. This question and the points formerly determined were fully discussed at the reargument. After a reconsideration of the questions of practice presented we find no reason to depart from the conclusions announced in our former opinion.

We come, then, to a consideration of the desert land act, as to its effect upon the parties hereto owning lands upon the streams involved, the rights of each of whom have attached since the passage of the act. This confronts us with the legal problem as to whether any are riparian owners, and, if so, to what extent and what bearing their claims as such have upon the water rights in question. It has become a matter of history that prior to any laws upon the subject the use of water was exercised under a custom permitting any person to go upon a stream, or other source of water supply upon the public domain, and divert water therefrom wherever and whenever needed, provided the use thereof did not interfere with the prior rights of others. In other words, priority in the diversion and use determined the rights of all conflicting claimants. This procedure was encouraged and acquiesced in by the government for many years throughout the Pacific Coast states, until in recognition there of Act Cong. July 26, 1866, c. 262, § 9, 14 Stat. 253, 7 Fed.St.Ann. 1090 (U.S.Comp.St.1901, p. 1437), was adopted which provided: "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 act constituted a recognition of pre-existing rights rather than a creation of any new one, and accordingly recognized and assented to appropriation of water in contravention to the common-law rule as to continuous flow. Broder v. Water Company, 101 U.S. 274, 25 L.Ed. 790; United States v. Rio Grande Irr. Co., 174 U.S. 690, 19 Sup.Ct. 770, 43 L.Ed. 1136; Gutierres v. Albuquerque Land Co., 188 U.S. 545, 23 Sup.Ct. 338, 47 L.Ed. 588; Davis v. Chamberlain, 51 Or. 304, 98 P. 154.

Supplemental to the above act, provision was made by Congress July 9, 1870, for incorporating a reservation in favor of such rights in all patents when issued, as follows: "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights or rights to ditches and reservoirs used in connection with such water rights. ***" Rev.St.§ 2340 (U.S.Comp.St.1901, p. 1437). This was followed on March 3, 1877, by what is known as the "Desert Land Act," parts of which, in so far as material to this discussion, are: "That it shall be lawful for any citizen of the United States, or any person of requisite age 'who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of twenty-five cents per acre, to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter: Provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. ***" 19 Stat.U.S. 377, 6 Fed.St.Ann. 392 (U.S.Comp.St.1901, p. 1548).

The title of the foregoing act reads: "An act to provide for the sale of desert lands in certain states and territories." Being an act of Congress, it is well known that it is not required that the title of the act embrace all its provisions; and, while a different rule prevails in some of the states, it is probably an exception rather than the rule that acts of Congress are limited to matters contained in their title. This being the rule which prevailed in Congress, we have only to look to the body of the act to ascertain its intention. After providing for the reclamation of arid lands and for the procuring of title thereunder, it will be observed that, in this act, as essential to the reclamation of lands, the water right, when located by the person taking the land, shall depend upon bona fide prior appropriation. The reason for this is apparent. The object and purpose of the act was by this method to reclaim, develop, and make productive arid lands or those of a desert character, which as a rule were nonriparian. For many years it was an open question whether lands through which streams flowed in their natural channels were subject to reclamation under this act. Sims v. Phalen, 11 Land Dec.Dep.Int. 206. But it was finally determined that such lands could be reclaimed where clearly shown to be of a desert character. Houck v. Bettelyoun, 7 Land Dec.Dep.Int. 425; Nilson v. Anderson, 23 Land Dec.Dep.Int. 139. Considering this feature with the then long-existing conditions in reference to the public lands throughout the West, the reasons for providing that the water right should be acquired under the doctrine of prior appropriation are obvious.

This first act (1866) refers to priority of possession and local customs, rules, regulations, etc., to which rules of construction were soon applied; the outcome depending largely upon whether the decisions were by courts in localities of a strictly arid nature or in the humid states. If in a strictly arid section, the doctrine of prior appropriation prevailed; while, if humid, a middle ground, or what is called the "modified doctrine of riparian rights," appears to have been the one adhered to and deemed the most conducive to the public welfare. Near the time of the passage of this act conflicts had arisen from the application of the law, as applied to riparian rights, in the arid and semi-arid West. In California the effect thereof on riparian rights was involved in much doubt and not fully determined, while in Nevada the noted case of Vansickle v. Haines, 7 Nev. 249, had been decided, adhering to the common-law rule on the subject. This latter case, however, was subsequently overruled, since which time the doctrine of prior appropriation has there prevailed. Jones v. Adams, 19 Nev. 78, 6 P. 442, 3 Am.St.Rep. 788; Reno S. Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L.R.A. 60, 19 Am.St.Rep. 364; Walsh v. Wallace, 26 Nev. 299, 67 P. 914, 99 Am.St.Rep. 692. The act of 1866 had left somewhat in doubt, not only the question of its effect upon riparian rights, but an uncertainty whether it thereby intended to establish a permanent rule upon the subject; and the act of 1870, requiring reservations in all patents issued, by inserting a statement therein to the effect that the patents were executed subject to vested and accrued water rights, etc., was evidently intended as a precautionary measure to remove doubts then extant as to the legal effect of any patents subsequently issued, so far as applicable to any rights acquired before the date thereof.

In order, therefore, to remove such doubts and to establish a uniform rule throughout the states mentioned in the act whereby all appropriations made from streams flowing through public lands over which Congress had power to legislate, after the provisions specifying the manner in which lands taken under the act could be reclaimed, there was added the clause: "And all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands, and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights." 19 Stat. 377 (U.S.Comp.St.1901, p. 1549). This reservation of water rights for the benefit of the public was clearly not essential to any of the other provisions of the act. The previous statement contained sufficient to define and protect the...