Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-02

1uiriug the use Of fixed amount by
The reason is that
among riparian owners the contin-
gencies Of the future are so many and
varied respecting the amount OF rain
or snow fall, the heat or humidity or
summer, the alienation of crops and
the like, that 1t is quite imparcticable'
Il not impossible, to determine in ad-
vance the question Of the duty OF
water for each riparian owner. Be-
sides, a decree of that kind would be
a virtual partition Of the water from
an estate in common to one In sew
crafty, although there would be no
rule whereby the estate Of any single
owner could be determined, owing to
the unknown factors already noticed.
Claiming then as he does from the
month Of June, 1865, the right to use
a fixed quantity Of water upon his
land without regard to its duty to
others, the plaintiff assumed the char
acter Of an appropriation in this liti-
CATION, and must be held to have
waived his rights as a riparian pro-
prietor, at least for the purposes OF
this suit, although the river in its
natural course washes his land. The
same reasoning applies to the answer
Of the defendant ]. B. Stoddard and
classes him also as an appropriation,
although the land he owns abuts upon
the natural channel of the river, for
he claims the right to the exclusive
use Of 100 inches OF water because,
as he alleges, his predecessors di-
verted that amount of water upon that
land in 1852. In legal effect, his af-
flrmative answer makes him assume
an attitude in the case similar to that
Of the plaintiff, viz: that of an apppro-
priator. True enough he says that
he requires that amount Of water in
the conduct of what he styles inten-
slye farming, which is well enough
to say as an appropriation, for even
such user of water is limited to
what is reasonably necessary in the
prosecution Of beneficial enterprise
His needs, however, furnish no stan
dard of adjudication among riparian
users, unless the needs of others in
the like situation are also taken into
the account and this feature is en-
tirely wanting in his answer The
fact that one owns land bordering up
on a stream does not inevitably con-
fine him to use of the water merely
as a riparian owner, neither does it
prevent him from establishing his
point of diversion on his own land.
Primarily any use of the water Of a
natural stream for a beneficial pur-
pose is free to him who has an oppor-
tunity to take 1t without infringing
upon the property rights of another.
AT least on the Pacific slope, the ext
gencies of mining and agriculture have
established this principle since the
earliest times. The general govern
ment acquiesced In its application
since the first settlements under the
American regime and by the act of
Congress of July 26, 1866, U. S. Comp.
Stat. 1901, 1887 and in the act of
March 8, 1877, commonly known as
the desert land act, has enunciated
the doctrine in statutory form.
Concerning the mere diversion and
use of water there is no difference
between a non-rlparian appropriator
and riparian user, provided the for
mer has a lawful right of access for
that purpose to the stream from which
the diversion is made. The essential
condition of appropriation in the first
place on public lands was the consent
or acquiescence of the then riparian
owner, the general government. The
reason of the rule is not changed bv
the fact that the riparian owner is a
private person provided the appropri-
ator has his consent or what is equiv
alent' that the appropriation and the
riparian owner are one and the same
person. The deduction then is that
II any one can lawfully gain access
Tor that purpose to a non-navigable
stream, and water is there not sub
leet to use by another, such a one
may appropriate II for his own use
That riparian owner may appropri-
ate water, his point of diversion being
on his own land, is taught by Brown
" Baker, 30 Or &C, 65 Pac. 799, 66
az lSS' Morgan V. Shaw, AZ Or. 1888,
So pac, 534,
The plaintiff and the defendant,
stoddard, although they are both rip
arian owners, are entitled to waive
their rights as such and to claim as
appropriations and are authorized to
so frame their pleadings, The cor
porate appellants must perforce claim
only as appropriations, for they do not
profess to own any lands, either rip-
arian or away from the river. and are
Wowedly conveying water to lands
that are not now riparian and were
never such even in the hands of the
original grantees of the government
1t follows that the plaintiff and these
defendants appealing are before us in
the character of appropriations, and
not as riparian owners and as sucb