Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-02
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

the defendants except lhOSS PiNui
Gated upon the cross petition Of the
MAY Park Water Co, and the answers
to the same as hereinbefore noted.
The circuit court found in substance
that the plaintiff had made a valid
appropriation Of 265 inches Of water
out OF the Grand Ronde river, miners
measurement, under slx-inch pressure
prior to any and all the defendants
or any Of their stockholders or pre-
decessors and proceeded in detail to
ascertain and fix the amount and or
der OF priority not only Of the claim
Of each defendant, both individual and
corporate, but also Of each stock
holder in each private corporation
defendant, and passed decree ac-
cordingly with costs and disburse-
ments proportionately adjusted among
the parties plaintiff and defendant.
The Orc Dell Canal Co., May Park
Water Ditch Co.. Nessly Ditch Co. and
J. B. Stoddard severally appealed from
this decree and each appealing de-
fendant served It's notice Of appeal
on every other party to the suit.
Burnett, ]. We have before us, as
active parties on this appeal, the
plaintiff and the defendants last above
named. The other defendants, SEEM
ingly satisfied with the decision OF
the circuit court, have not questioned
II here but, having been warned by
the notices of appeal served upon
them TO defend In this court the
award Of the court below respecting
their claims, they must abide the de-
cision on appeal.
II is plain that, although the plain
tiffs land bordeis on the river, he
Is maintaining his suit as an appro-
prlator, and not as riparian proprl-
etor. One OF the distinctions between
appropriation of water and use by a
riparian proprietor is that the former
contemplates tenancy in severalty
while the latter is essentially ten
ancy In common with all other rip
arian proprletors on the same stream.
or domestic use including water, not
only for his household, but also for
such animals as are essential for the
proper sustenance of his family the
upper riparian owner may take so
much Of the water OF natural stream
as may be necessary for that purpose
although none may be left for the
lower riparian owners.
So far the use Is grounded on actual
necessity. But irrigation is not so
essentially a vital requirement and
riparian use for that purpose is lin
tied at all times by the condition that
II must be so exercised as not to ma.
terially injure the rights OF other rip
arian owners in the proportional use
OF the water Of the same stream for
tho irrigation of their riparian lands.
On the other hand, an appropriation,
subject to rights In existence ut the
time his appropriation is made, may
take all the water ~ can use rea-
sonably and without waste for bene-
flcial project, although It may be the
lions share and none may be left for
those who come afterwards In other
words, a riparian owner, using water
In that capacity is in a sense always
q tenant In common with other rip
arlan owners ON the same stream
whose rights, at least for irrigation,
he Is bound not materially to injure
by his riparian use of the water. The
appropriation, however, is always n
tenant in severalty owing no duty or
respect to those endeavoring to use
the water by title subsequent to his
own, II Is the established doctrine in
this state that settler upon public
lands, which border upon a non nav.
igable stream, may claim the usa Of
water either as a riparian owner or
as an appropriation but he cannot do
both. The exercise Of one right is in
substance a waiver OF the other. Low
Y, schaffer, "a Or 299; North Powder
Milling Co. v, Coughanour, "a Or. .;
Brown " Baker, 80 Or 65, Davis v
Chamberlain, 81 Or, SOi.
A reason for this is that one cannot
at the same time hold title to the
same thing both as tenant In com.
mon and in seyeralty. Applying these
principles to the complaint, we OBJ
serve that the effort Of the plaintiff
Is to have fixed quantity of water
segregated from the whole amount
flowing in the river past his land and
appropriated to his exclusive behest,
thus destroying one Of the essential
characteristics Of riparian user con
sidered as q tenancy In common In
the very nature Of things, court can
not fix in advance by It's decree what
quantity Of water will be reasonable
in the future for the use Of riparian
proprietor claiming the duty of water
In that character, This conclusion Is
necessary corollary to the case Of
Jones v. Conn, 80 Or, 80, "a Pac S56
6S Pac, lO6S. The essence Of the CON
troversy between the parties there.
both Of whom claimed as riparian
proprletors, was whether the land ON
which the defendant was using the
water was In fact riparian, The de.
fendant, however thinking to have