East Oregonian : E.O. (Pendleton, OR) 1888-current, 1916-05-31
INDIAN RIGHTS


different character than the Ft. Bel
knap reservation lands does not fur
nish sufficient reason for different
principle Of construction. he holds
Judge Phelps cites practical testl-
mony to the fact that water diverted
from stream for irrigation purposes
to considerable extent finds its way
back to the stream to be used again
by those lower down. 1T is not like
~" he says, therefore, that any
beneficial use OF the waters of the
Umatilla by the Indians will seriously
affect in the long run the use of the
stream for the purposes of the mill
company.
But, however that may be, | am
Of the opinion that by the holding OF
the supreme court of the United states
in the Winters case supra, the Indian
has a primary right to the use of the
water to the extent or his needs, limit
ed only to a beneficial use under the
general rule pertaining to the duty of
water"
Mills Rights Up to Congress.
AS for determining the rights of the
milling company at this time, Judge
Phelps holds that any act of his court
at this time would be premature, On
March 5, 1885 congress passed an act
continuing the license granted to
George La Dow, Lot Livermore ct al
"a nf fn, v.fxs fv, 60
vor of W. S, Byers. That act speci.
fled that such continuance was not to
affect or impair any existing rights or
to grant or confirm any right to use
water beyond or different from the
original license.
1t has been the contention of the
government that this permissive use
or license was subject to revocation at
any time while the Byers mill inter-
ests asserted that a permanent right
to the use Of 10000 cubic feet of water
per minute was granted. In advance
of any attempt by congress to repeal,
modify or withdraw the privileges
mentioned, Judge Phelps holds that
premature and not binding. Such
rights as are given to the milling
company must continue until some at
| tempt is made to take them away.
Should this attempt be made, feder-
al question would arse to be settled
in federal courts, he holds.
However, such rights as the milling
interests have, whether temporary or
permanent, do not affect the primary
rights of the Indians, ne holds.
The Duty or Water.
AS to the amount of water which
should be allowed TO waterusers for
irrigation purposes, Judge Phelps
states that it is difficult to make an
estimate. The law gives them an
appropriation sufficient for proper ir-
rigation. Judge Phelps states that it
is not the policy of the government
to deprive the land owners of ne
cessary amount but to limit the use to
actual requirements.
Generally speaking the water user
has been negligent he says, land
either unable or unwilling to arrange
to build up his system of irrigation so
/ as to waste as little water as possible. :"
In the main Judge Phelps finds the
conclusions reached by the state wa
ter board to be correct but thinks that
it is evident from the testimony that
In the reclamation or arid lands a
larger amount of water is required
than allowed by the board. His opin-
ion is that in the reclamation of arid
lands five and haIf acre feet SHOULD
be allowed instead of four and a half
during the process of reclamation.
One fOrtieth of a second foot or one
inch to the acre is undoubtedly suffi-
cient to irrigate any of the land and
is too much for some" he states.
Therefore, he establishes one inch as
the maximum amount and leaves it to
the water master to determine
the character of the soil and the ap-
lication of water under the decree. In
other words the decree is a flexible
one and under the supervision of the
water master More than one inch
cannot be used and the water master
is given the authority to determine
how much less is actually necessary
for the particular land
Doctrine Of Relation.
The law gives a water user, when
he secures a water right, a reasonable
time in which to use this right and
under this law Judge Phelps was call
ed upon to consider the claims of the
Western Land & Irrigation Co. the
Furnish Ditch Company. the United
States and others relative to the dates
of priority. In this connection Judge
Phelps states that the water board
recognizes there must be a revision OF