Re Water Rights of Hood River , 114 Or. 112 ( 1923 )

I concur in the dissenting opinion of Mr. Justice McCOURT.

Our Water Code is copied largely from that of California. That state has been the pioneer in the enactment of legislation pertaining to the use of water in the development of irrigation. In that state, as in this, the common-law doctrine in reference to riparian rights has prevailed, and that doctrine has never been questioned in California since the decision of the Supreme Court of that state in the case of Lux v. Haggin, rendered on April 26, 1886, reported in 69 Cal. 263 (4 P. 919, 10 P. 674). From legislation and the decisions of the Oregon Supreme Court, the writer had become convinced that that question was staredecisis in this state.

Honorable LUCIEN SHAW, Chief Justice of the Supreme Court of California, in an instructive address on the subject of the development of law of waters in the west, appearing in the "American Bar Association Journal" of September, 1922, says, in reference to the case of Lux v. Haggin, supra, and the doctrine therein announced:

"Probably no case ever came before the Supreme Court of California that was more fully argued or in which counsel of greater ability were engaged on the respective sides. The opinion was exceedingly exhaustive, covering 176 pages of the printed report. It is the longest opinion to be found in the decisions of our Supreme Court, and it elaborately treated every phase of the subject. It declared that the rights of the riparian owners to the use of the waters of the abutting stream were paramount to the rights of any other persons thereto; that such rights were parcel of the land, and that any diminution of the stream against the will of the riparian owner by other persons was an actionable injury. The question was settled by that case, and the riparian right has never since been disputed."

In speaking of the question that the policy might be injurious to nonriparian lands, the learned Chief Justice said:

"The opponents of the doctrine of riparian rights had pointed out these results with much emphasis. * * The obvious answer on the question of policy is, that the objection comes too late, that it should have been made to the Legislature in 1850, prior to the enactment of the statute adopting the common law. When that was done, the riparian rights became vested, and thereupon the much more important public policy of protecting the right of private property became paramount and controlling. This policy is declared in our constitutions, has been adhered to throughout our national history, and it is through it that the remarkable progress and development of the country has been made possible.

"Notwithstanding the existence of these vested rights, there has been a very general use of water on nonriparian land. This has been made possible by several causes. The most important and effective cause of a legal nature is the common-law rule, now expressed in Section 1007 of the Civil Code, that a title by prescription, good against all owners of private property, may be acquired by adverse occupancy."

In my opinion, the nonriparian owner of lands in nonarid districts would not suffer substantial injury by a full enforcement of what I conceive to be the law of the land. I am fully aware that on much of the nonriparian land along the Malheur, the Owyhee, and other streams in eastern Oregon, the sagebrush has been uprooted and water appropriated from the streams and conveyed to the soil, which now grows fields of grain, alfalfa, orchards and gardens. Further, it is my opinion that the common law, as now expressed by our statute, has, by prescription and adjudication, given to many of these nonriparian users a valid right to the use of the water thus appropriated.

Finally, as to vested rights in land: In Oregon, as well as in the State of California, rights of property which have been created by the common law cannot be taken away without due process: Munn v. Illinois, 94 U.S. 113 (24 L. Ed. 77, see, also, Rose's U.S. Notes); Second Employers' Liability Cases,223 U.S. 1, 50 (56 L. Ed. 327, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169).