Daily capital journal. (Salem, Oregon) 1903-1919, 1910-03-30
WATER CASE
DECIDED BY
GALLOWAY
CASE OF STATEWIDE INTEREST
JUDGE HOLDS THAT BOARD
EXCEEDED ITS POWERS IN
MAKING CHOICE BETWEEN AP-
pIICANTS.

Declaring that the State Board Of
Control. in the making of an order
with relation TO the application OF r,
S. Cookinham and W. A. Thatcher for
the appropriation OF the water OF the
Powder river. for the reclamation of
arid lands. had exceeded its jurisdic-
tion. Judge Galloway today sustained
the writ OF review of the plaintiffs in
the case Of r. s. tCOokinham and W.
A. Thatcher against State Engineer
John II. Lewis and the State Board of
Control. and directed that the order
be annulled, and that the proceedings
of the state engineer, wherein the
water applications OF the plaintiffs
were referred TO the board of control,
be dismissed.
The decision of Judge Galloway
will be of statewide interest. not
alone because of the fact that il in
wolves one of the largest projects ever
launched in the state for the recla-
nation of arid lands, but because in
it is defined and mapped out the pro-
cedurefto be followed in securing
water rights.
History of the Case.
The plaintiffs made their applica-
tion TO the state engineer for a permit
70 appropriate waters of the stream
March IS, 1903, and subsequent
thereto Jacobs and Almiral, repre-
sented by o. c. Finkelnburg. made
their application for the same
stream, and also entered into a pre-
liminary contract with the State
Land Board for reclamation of GER
tain arid lands. The engineer refer
red both of the applications to the
Board of Control. on the ground that
the appropriation Of the water would
be menace to the safety of the pub
lie. a hearing was held and the
boards findings were that the plain
tihs had no preliminary contract.
and that the engineer should grant
the permit TO appropriate the water
OF the stream TO the party making a
final contract with the State Desert
Land Board. The plaintiffs then asked
for a writ of review from Judge Gal
lOway.
Exceeded Jurisdiction.
The plaintiffs claimed their appli-
cation was prior to that of Jacobs
and Almiral, and that the only uues-
tion before the board was as whether
the appropriation of the water was
a menace to the public, and that the
board exceeded its jurisdiction in di-
recting the engineer to award the
right Of the water appropriation to
any party.
The defendants came back with a
motion asking that the writ be dis
missed on the grounds that it did not
state sufficient facts to constitute
cause OF action; that the proceedings Z
OF the board were not final: that it
was beyond the jurisdiction of the
court, and the proceedings of the
board not renewable.
Judge Galloway held against all
these contentious. and also further
held that the board had exceeded its .
Jurisdictional powers in the making
OF its order; that the State Land .
Board. STATE Desert Land Board and
State Board of Control We're separate .
and distinct bodies, and had nothing
10 DO with the proceedings and DOW
7rs Of the latter. and finally that in
he application of water rights that
the doctrine first came first served"
must be observed
Because of the magnitude of the
'ase, from a financial point of view.
t Is certain 10 go 10 the supreme
.ou.t Ter final adjudication.