Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-24

ters and consulted with sundry water
users OF his district upon official
business connected with the office OF
water master, and thereby consumed
one day OF his time, and that his
claim Of five dollars therefor was re-
jected by the county court
Judgment was given against plain
tiff on demurrer, and he appeals.
Mcbride, ]. Plaintiff is the first
water master appointed under the
water code OF 1909, and while the
amount involved in this action Is
small. yet, in view Of the future
operations OF the board Of control, In
relation to the supervision Of irriga-
ton in this state, the questions arls-
ing upon this appeal are Important.
The first question arising may be
briefly stated as follows: Has the
Board Of Control any jurisdiction to
supervise the distribution Of the irri-
cation water taken from a stream
before the rights and priorities OF
the parties have been determined, as
provided by Chapter ZIG, Session
Laws Of 1909? The Board Of Con-
troll consists of two division superln-
tendents and the state engineer.
Section 4 Of the act cited Is as fol-
lows: Said division superintendent
shall have general control over the
water masters Of the several dis
tricts within his division. He shall
execute the laws relative to the dis
tribution OF water, and perform such
other functions as may be assigned
to him. He shall have authority to
make such reasonable regulations to
secure the equal and fair distribution
Of water In accordance with the de-
termined rights as may be needed In
his division Such regulations shall
not be inconsistent with the laws Of
the state" The extent Of the jur-
lsdiction Of the Board of Control or
division superintendents depends
upon the construction to be given to
the words determined rights" used
In the above section. In our opinion
this Interpretation is to be found in
Sections II and "a of the chapter
cited Sec. II is as follows: Upon
petition TO the Board OF Control,
signed by one or more water users
upon any stream requestion the de-
termination of the relative rights of
the various claimants to the waters
Of that stream, il shall be the duty
OF the Board Of Control, If, upon in
yestlgation, they find the facts and
conditions are such as to justify, to
make a determination of the said
rights, fixing a time for beginning
the taking Of testimony and the m9k.
Ing Of such examination as will ena-
BILE them to determine the rights of
the various claimants. In case suit
Is brought in the circuit court for
the determination of rights to the
use of water, the case may, in the
discretion Of the court, be trans
ferred to the Board of Control for
determination as in this act proyid.
ed"
Sec, "a provides that "as soon as
practicable after the compilation of
said data, and the filing of said eyi-
dence, II shall be the duty of the
Board OF Control to make, and cause
to be entered of record in its office
an order determining and establish
ing the several rights to the waters
OF said stream" This determination
Is then to be entered In the records
OF the board and Is in full force and
effect from the date of such entry
unless a stay bond is filed as pro-
ylded in the act A copy of the Or
der, together with the evidence Is
llled In the circuit court. and n time
Is liked by the circuit Judge for the
hearing OF such determination; and
II no exceptions. to the determination
are filed within the time set for n
hearing, the court enters a decree
aliirming the determination.
BY the provisions of Sec. 97 n is
made the duty OF the clerk of the
circuit court to transmit certified
copy Of the decree to the secretary
OF the Board Of Control, and when
the same is recorded the state engl-
neer, who is ex-oiilcio president Of
the board, Is required to issue in
strucuons to the superintendent of
water divisions in compliance with
the decree and in execution thereof
Section S6 is as follows: THE
Board Of Control shall divide each
water division into water districts
and said water districts to be so con-
stituted as to secure the best pro-
lection to the claimants for water
and the most economical supervision
on the part OF the state; said water
district shall not be created until a
necessity therefor shall arise, but
snail be created from time to time as
the claims thereof from the streams
oi the state shall be determined"
me succeeding section provides
Tor the appointment OF water mas
Ter, and among his otbar Juti,. -,