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

I concur in the opinion of Mr. Justice BEAN. In my opinion the whole case turns upon the constitutionality of Sections 5715, 5716 and 5717, Or. L.

In the first section above quoted it is provided that all waters in the state, from all sources of supply, belong to the public. By the second section it is provided that, subject to existing rights as therein provided, waters may be appropriated for beneficial use, but that the section shall not be construed to take away or impair the vested right of any person, firm, corporation or association to any water. Subdivision 2 of Section 5717 defines, it seems to me, what is meant by a vested right. It is as follows:

"Actual application of water to beneficial use prior to the passage of this act by or under authority of any riparian proprietor, or by or under authority of his or its predecessors in interest, shall be deemed to create in such riparian proprietor a vested right to the extent of the actual application to beneficial use, * *"

It seems to me that this definition makes the test of a vested right the beneficial use of the water by a riparian proprietor, and, if this act is constitutional, then the appropriators in this case are entitled to a decree.

It is difficult exactly to define in what a vested right in the use of water consists. Practically, there is no such a thing as property in the water of a flowing stream. The riparian proprietor may own the banks, and even the bed of a non-navigable stream, but he no more owns the water than he owns the air. His only right is the right of using it. In this country we have ceased, to a great extent, to apply, in its original severity, the common-law doctrine, "Water runs, and it ought to run as it is accustomed to run." This maxim, while very convenient in expression, was never in fact practically applied in common law to its full extent.

The riparian rights to water, or to the use of water, may be divided into two classes — natural uses, and other uses which may be deemed extraordinary. Natural uses, which I deem to be those that vest in a riparian proprietor at the very moment that he obtains title to land bordering on a natural stream, include the use of water for domestic purposes of his home or farm, such as drinking, washing or cooking, or for his stock. These might well be construed to extend to all culinary and household purposes, even to the watering of a garden and things of that character, and, so far as irrigation is concerned, the watering of a small garden is about the extent of use to which any kind of irrigation was put at the time of the common law. All other uses are extraordinary, and may be classed rather as privileges than as rights, and, as to such, I do not believe the theories of the common law should be applied.

All confess that the common-law theory of riparian rights has been modified in this country in many respects, either by legislation or by holdings of the courts declaring it inapplicable in some particulars to conditions in this country, and the fact that such modifications have been upheld by the courts strongly indicates that, except as to the natural uses before mentioned, no constitutional right to the enjoyment of the flow of a stream exists, but that the use in these extraordinary respects is in the nature of a mere privilege, over which the legislature has jurisdiction.

As to manufacturing and the use of water by dams, it does not seem to me that it ever arose in this country above the dignity of a mere privilege, over which the legislature had complete control. This is especially true of mills. Very many of the decisions, in referring to a mill site, speak of it as a "mill privilege." In Hutchinson v.Chase, 39 Me. 508 (65 Am. Dec. 645), it was substantially decided that a "mill privilege" is the right to the use of a water-power in its existing state. It was only another term for a mill site, with the privilege of using the water by placing a dam. Mill sites, and the use of water thereon, are termed "mill privileges" in the following cases, which do not at all exhaust the list: Whitney v. Wheeler Cotton Mills, 151 Mass. 396 (7 L.R.A. 613); Pettee v. Hawes, 13 Pick. (Mass.) 323; Knapp v. Douglas Axe Co., 95 Mass. 1; Moore v. Fletcher,16 Mo. 63 (33 Am. Dec. 633); Gould v. Boston Duck Co., 79 Mass. 442;Farrar v. Cooper, 34 Mo. 394. The use of this term, as contradistinguished from the term "right," or "vested right," is significant, and indicates that there has long been in this country, although not always plainly expressed, a distinction between those natural rights of access to and use of water for ordinary purposes, and those privileges which are exercised by the building of dams and the use of the head of water thereby obtained for the purposes of manufacturing.

It seems to me that we are at the parting of the ways with the old common-law doctrine of the use of water. In this case a small sawmill, and thereafter an electric light plant, were put in use upon the stream and there was no indication that those uses would be extended when the irrigators who are parties here filed their notices and began to take out water to supply the wants of a large community. If the Power Company is entitled, by reason of its riparian situation, to the use of any portion of what has been so diverted or is now being diverted, it is entitled to every drop, and to take it at such time as it may choose; and this would apply not only to the large community of water users on Hood River, whose investments had been made on the faith of their right to use this water for the purpose of irrigation and who would be impoverished to a great extent by a decree in favor of the Power Company in this case, but it would apply to many other streams in Eastern Oregon, with an ultimate consequence which would be more serious and injurious to the people of that semi-arid section than the recent decline in the price of wheat, and wool and beef, injurious as these consequences have been.

I do not believe that we should attempt to apply the common law, which had its origin in a country where the natural humidity was such as to render the problem of getting rid of surplus water much more important than the conservation of water for the purpose of irrigation, to which latter purpose it was seldom applied. With no right in nonriparian users to a continuance of their use beyond the time when the riparian owner may see fit to put the water to some practical use in operating machinery, it will practically put an end to irrigation in the arid section of this country, because no sane man will invest in what would be a precarious title, which would, in fact, make him a tenant at will of a riparian owner.

I am aware there has been some expression of our court, especially as to the rights of flotation upon non-navigable streams, which would indicate a different view, but these are to a great extent dicta, as applied to a condition like the present. It may be said that property rights have grown up as a result of the dicta in these decisions and that, therefore, they should be adhered to, notwithstanding the present condition; but such property rights as have grown up are infinitesimal compared to the property rights which would be destroyed by adhering to technical, unsuitable and worn-out common-law doctrine.

RAND, J., concurs in the foregoing opinion.