Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-04

vate use or for public use, which is
available to the applicant, then the
engineer must approve 1.-THE other
conditions being fulfilled. But he is
not required to approve an applica-
tion for an appropriation or for a
reservoir, intended for a public, ben
eficial use, which is not available to
the applicant The beneficial use In
this case was not available to plain
tiffs and that is the weakness of
plaintiffs position here. This an
swers, also, plaintiffs contention
that priority of filing gives priority
of right. No doubt the first filing
should have the first right when all
the terms of the law, as to the appli-
cation, are fulfilled, which would be
the case in application for a private
use, as by settler upon his own
land, or for public use available to
the applicant, which in either case
will not be menace to public inter-
ests. The only reference in the
statute to priority of filing is that no
application shall lose its priority on
account Of defects in the application,
which are remedied within 30 days.
In urging that the priority of fl
ing must control, counsel suggests
that the Water Code was prepared
by the Oregon Conservation Commits
sion, which was familiar with both
the law and the subject, and that the
language used in the act should be
strictly followed in giving plaintiffs
application priority. Since plaintiffs
refer to the intent of the commission,
we are justified in referring to 1t as
well as to the intent of the legisla-
ture. In the opinion we only re-
ferred to previous statutes on this
subject to show the attempts of the
state to utilize its surplus water of
the lakes and streams in reclafming
arid land, as well as for other pur-
poses. Congress took the initiative
in the matter and the state of Ore
gon, since the Carey Act, has sought
to cooperate with congress, and the
Oregon Conservation Commission, at
| first voluntary organization, but in
1909 made a creature of statute, has
been working to the same end, which
resulted in the state legislation of
1909, with view to great public en-
terprises for the utilization of the
! surplus waters and the reclamation
of arid lands. In the report of the
commission to the governor, of date
November, 1908, as to the conditions
and possibilities under consideration,
which is exhaustive on that subject,
the defects Of the former methods of
acquiring water rights are set forth
and the undertaking contemplated by
the commission outlined, namely: to
conserve the surplus waters, as we'll
as to settle and make definite water
rights already existing as the only
means of reclaiming arid lands of
the state under the Carey Act (see
pages 66, II and 73 of the report,
under the control of the state in a
manner not possible by private eff
forts alone.
1t is stated by the commission, at
page SO of the report, that "the de-
sired laws (as to reclamation) can
now be framed in harmony with the
proposed legislation on the subject
of water rights, which should be and
is the necessary foundation of reclaim
alton by the state" That statement
shows that those laws were intended
to be dependent upon each other and
to constitute state system of water
title as a basis of sale to arid lands
owners or to settlers upon such land.
The grant. of the Carey Act is upon
the proviso that the state will as
sumo the responsibility of reclama-
ton, which includes the procuring of
water therefor
By Sec of the Desert Land
Board Act it is provided, that the
board will contract with an applicant
to reclaim the land when 1t appears
to it that the plan is feasible; that
the applicant is financially able to
complete the work, and that IT'S COM
pletion will be to the best interests
of the state; the contract to be let
to the lowest responsible bidder,
when the estimate of the lien for
costs is reasonable.
Plaintiffs construction of these
legislative acts would deprive the
board of any discretion in these mat
ters and thus defeat the very pur-
pose of the statute. The whole pur-