East Oregonian : E.O. (Pendleton, OR) 1888-current, 1911-12-27

Salem, Or, Dec 27.--A decision of
general interest in Oregon at this time
owing to the issue over the u e Of the
water of the Umatilla river in the ex-
tension of the Umatilla project, and
also because Of the fact that the de-
cision illustrates a decided evolution
in the courts way Of interpreting wa
ter right laws, was handed down by
the supreme court in an opinion writ
ten by Justice Burnett in the case of
Caviness VS.. the La Grande Irriga-
tion company ct al.
The plaintiff settled on the Grand
Ronde river in 1862 and about three
years afterward appropriated water
from the stream for use on his land.
More or less use was al % made OF the
water by neighbors on the river above
him He alone maintained his origi-
nal holding of land and water to the
present The lands higher up the riv-
er passed into other hands and the
success. ors of the original holders
formed various corporations to appro-
pirate water mainly for irrigation.
Claiming that these corporations and
some few individuals above him were
taking so much water that his rights
were invaded, the plaintiff brought
suit to quiet his title to the use of the
water in the amount he claimed and
to enjOin the defendants from inter
fering with it. The defendant corpor-
| alton endeavored to prove that the
other orig nal settlers made appro-
priations of water before the plain
tiff and to trace their titles back to
them.
Two Kinds of Use Impossible.
In the opinion by Justice Burnett
the court modified the decision of the
circuit court and enunciated the fol-
lowing principles:
An allegation that a corporation is
mere holding concern, organized for
the auxiliary purpose of managing
the water privileges belonging to GER
tain persons is not proven by articles
of incorporation showing that the
company is doing business as a water
user. In the absence of anything
| showing that such a corporation ac-
uuired appropriations of water made
by prior holders it cannot defend an
| Appropriation made earlier than its
organization. Although one whose
! land borders upon a non-navigable
stream may claim the use of water
either as a riparian owner or as an
| proprietor, he cannot claim in both
/ capacities at once, a reason for this
| being that a ripar'n used of wter is
| always a tenant in common, in GER
| tain sense. with every other riparian
user on the stream, while an appro-
| priator is a tenant in severalty, in
! dependent of other water users, and
one cannot at the same time hold title
to the same thing both in common
| and in severalty.
At least for the purposes of irriga-
ton, the right of one claiming the use
use of water as a riparian owner is
! limited at all times by the condition
! that II must be so exercised as not ma
! terially to injure the rights of other
/ riparian owners in the proportional
Use of the water of the same stream
for the irrigation of their riparian
| land.
One Man May Take AL
on the other hand, an appropriate
or, subject to rights in existence at
| the time his appropriation is made,
! may take all the water he can use
reasonably nd without wste for bene-
| fetal project, although none may be
| left for those who come afterwards.
One who demands the use of a fix
ed quantity of water under all cir
cumstances is construed to claim as