WITHERS v. Reed , 194 Or. 541 ( 1952 )

LUSK, J.

The single question for decision on this appeal is whether § 116-437, OCLA, is applicable to the state of Oregon. That section reads:

“Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state, and whenever hereafter the owner of a perfected and developed water right shall cease or fail to use the water appropriated, for a period of five successive years, the right to use shall thereupon cease, and such failure to use shall be conclusively presumed to be an abandonment of such water right, and thereafter the water which was the subject of use under such water right shall revert to the public and become again the subject of appropriation in the manner provided by law, subject to existing priorities; provided, that this act shall not apply to, or affect, the use of water, or rights of use, acquired by cities and towns in this state, by appropriation, or by purchase, for all reasonable and usual municipal purposes; and this act shall not be so construed as to impair any of the rights of such cities and towns to the use of water, whether acquired by appropriation or purchase, or heretofore recognized bv act of the legislature, or which may hereafter be acquired; and the right of all cities and towns in this state to acquire rights to the use of the water of natural streams and lakes within this state, not otherwise appropriated, and subject to existing rights, for all reasonable and usual municipal purposes, and for such further reasonable and usual municipal purposes as may reasonably be anticipated by reason of growth of population, or to secure sufficient water supply in cases of emergency, is hereby expressly confirmed.”

The case arose in this way. In 1928 Eobert C. Lowe was the owner of forty acres of land in Township 22 South of Eange 32 East W. M. in Harney County, Oregon, with the right to irrigate such land from the waters of Mill Creek and Coffee Pot Creek. Lowe was a veteran of World War I and mortgaged the land to the World War Veterans State Aid Commission as security for a loan made to him pursuant to the provisions of Art XI-C of the constitution and § 104-110, OCLA. Lowe defaulted, and in 1932 he and his wife conveyed the land to the state in lieu of foreclosure, the note and mortgage being canceled. The state held title to the land until 1945 when it sold it to a predecessor in interest of the contestee and appellant, Ealph E. Eeed. During the period of thirteen years of ownership by the state the land •was not irrigated, although water was available for that purpose. These facts are stipulated.

The present proceeding was commenced by a complaint filed by the contestants and respondents in the Circuit Court for Harney County, and was referred to the state engineer for an adjudication of the water rights involved. There were other parties to the proceeding, but we are not concerned with them. The controversy, so far as the parties to this appeal are concerned, turned on the question whether the state had forfeited its water right by non-user for a period of more than five years. The state engineer held that the statute applied to the state, that such forfeiture had occurred, and therefore that the contestee, Eeed, successor in interest to the state, had no right or interest in the waters of Mill Creek and Coffee Pot Creek. On exception filed by the contestee the circuit court affirmed the state engineer’s order of determination in respect of the question before us and entered a decree accordingly from -which the contestee has appealed.

Eeed relies upon the principle crystalized in the legal maxim, nullum tempus occurrit regi. The general rule is thus stated in 3 Sutherland, Statutory Construction 3d ed, 183, § 6301:

“General words or language of a statute that tends to injuriously encroach upon the affairs of the government receive a strict interpretation favorable to the public, and, in the absence of express provision or necessary implication, the sovereign remains unaffected.”

We premise our discussion of the question by stating, what is expressly conceded by the contestants, that the state is the real party in interest with respect to loans made by the World War Veterans State Aid Commission, and that in the administration of the Act, at first through the commission and subsequently through the State Land Board (Oregon Laws 1943, Ch 175), the state was acting, not in a proprietary, but in its sovereign capacity, and that in such capacity it held title to the lands involved and to any funds derived from their sale. State Land Board v. Lee, 84 Or 431, 439, 165 P 372. It is manifest, and there is no contention to the contrary, that, since the state is not mentioned in § 116-437, OCLA, the rule, nullum tempus, controls our decision unless the case falls within some recognized exception to that rule.

The classic exposition of the doctrine is to be found in the opinion of Mr. Justice Story in United States v. Hoar, 2 Mason 311, 313, who wrote:

“The true reason, indeed, why the law has determined, that there can be no negligence or laches imputed to the crown, and, therefore, no delay should bar its right, (though sometimes asserted to be, because the king is always busied for the public good, and, therefore, has not leisure to assert his right within the times limited to subjects,) is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers. And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation or exception, introduced for the public benefit, and equally applicable to all governments. * * *

“But, independently of any doctrine founded on the notion of prerogative, the same construction of statutes of this sort ought to prevail, founded upon the legislative intention. Where the government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary force to the government itself. It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.”

In Guaranty Trust Co. v. United States, 304 US 126, 132, 82 L ed 1224, 58 S Ct 785, Mr. Chief Justice (then Mr. Justice) Stone, after quoting from United States v. Hoar, said:

“* * * Regardless of the form of government and independently of the royal prerogative once thought sufficient to justify it, the rule is supportable now because its benefit and advantage extend to every citizen, including the defendant, whose plea of laches or limitation it precludes; and its uniform survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king [citing cases]. So complete has been its acceptance that the implied immunity of the domestic ‘sovereign,’ state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included; and to the Conformity Act.”

The rule that the statute of limitations does not apply to the state has been several times affirmed by this court. Thus, in State Land Board v. Lee, supra, in holding that the statute of limitations relating to mortgages did not bar the State Land Board, in a suit to foreclose a note and mortgage given to the board to secure a loan of money out of the irreducible school fund, the court said (84 Or 434):

“Stated in broad terms, it is a rule of universal recognition that the government is not included in a general statute of limitation unless it is expressly or by necessary implication included. This rule is said to be founded upon the legal fiction expressed in the maxim nullum tempus occurrit regi. However, it is not necessary to predicate this salutary precept upon any fiction, since sound reason for the rule is found in the fact that as a matter of public policy it is necessary to preserve public rights, revenues and property from injury and loss by the negligence of public officers.”

See, also, State v. Warner Valley Stock Co., 56 Or 283, 308, 106 P 780, 108 P 861; Fidelity & Deposit Company of Maryland v. State Bank of Portland, 117 Or 1, 9, 242 P 823; Day v. Celoria, 116 Or 250, 241 P 58. And, upon the principle that “a sovereign is not bound by the words of a statute unless it is expressly named,” this court has held that the state is not within the purview of a general law regulating the rate of interest (Seton v. Hoyt, 34 Or 266, 273, 55 P 967, 43 LRA 634, 75 Am St Rep 641), or of a statute giving a priority to tax liens (State Land Board v. Campbell, 140 Or 196, 13 P2d 346). Further, it has been held that the state has a preference right to priority in payment out of the effects of an insolvent debtor, this being one of the prerogative rights of the British crown to which the state has succeeded. United States F. & G. Co. v. Bramwell, 108 Or 261, 271, 217 P 332, 32 ALR 829; Fidelity & Deposit Company of Maryland v. State Bank of Portland, supra.

As to the general rule, there is no dispute between counsel, both of whom have presented the case with ability and commendable candor. They differ on the question whether the case falls within a recognized exception, thus stated in Chitty in his work on Prerogatives of the Crown, page 382:

“The general rule clearly is that, though the King may avail himself of the provisions of any Acts of Parliament, he is not bound by such as do not particularly and expressly mention him. To this rule, however, there is a most important exception, namely, that the King is impliedly bound by statutes passed for the public good; the relief of the poor; the general advancement of learning, religion, and justice; or to prevent fraud, injury or wrong. * * * But Acts of Parliament which Avould divest or abridge the Bang of his prerogatives, his interests or his remedies, in the slightest degree, do not in general extend to or bind the King unless there be express words to that effect. * # #

“And in mere indifferent statutes, directing that certain matters shall be performed as therein pointed out, the King is not thereby in many instances prevented from adopting a different course, in pursuance of his prerogative.”

The contestants cite United States v. Hamburg-Amerikanische Packetfahrt Actien Gesellschaft, 212 F 40 (CA 2d). The question there was whether the United States was bound by the federal statute known as the Limited Liability Act, which provides that the liability of the owner or owners of any vessel for any loss by collision shall in no ease exceed the value of the interest of such owner or owners of such vessel and her freight then pending, and that, if the whole of the ship and her freight shall not be sufficient to make compensation to those who suffer the loss, they shall receive compensation in proportion to their respective losses. The United States filed a libel against the owner of a vessel to recover damages caused by the total loss of a number of sacks of mail when the respondent’s vessel was sunk in a collision with another vessel. The United States contended that, under the principle here invoked, the act did not apply to the government, and that it could recover the full amount of its loss regardless of a decree previously entered in a proceeding for limitation of liability which provided that all claims not already presented should be forever barred. The United States had made no claim and filed no suit within the period fixed by the court.

The Circuit Court of Appeals, after quoting the statement from Chitty above set out and after reference to other authorities which enunciate the same exception to the general rule, held that the statute bound the government notwithstanding the government was not named; that it came within the exception, since it was a statute, the primary purpose of which was “the promotion of the general welfare of the nation by giving encouragement to capital to invest in the building and navigating of ships so that the commerce of the United States might be developed.” The court said:

“* * * If the public purpose is clear, the legislative intention is not to be defeated by the fact that the immediate benefit may be private and individual. * * * The controlling motive of the enactments was the general good of the country as a whole.” (212 F 47)

The court distinguished the Limited Liability Act from ordinary statutes of limitation, which were said to be “for the benefit and repose of individuals and not to secure general objects of policy and morals.” It referred to the fact that in United States v. Hoar Mr. Justice Story “repudiated the idea that the exemption of the government from the operation of statutes of limitation rested in the notion of the prerogative.” The court said: “He based it on the principle of the preservation of the public rights from loss by the negligence of public officers.” Any other construction than the one placed on the Act by the court, it was said, “would greatly diminish the value and efficiency of the act and largely defeat what we conceive to have been the intention of the lawmaking body of the nation.”

In The Florida, 212 F 334 (DC SDNY), United States District Judge Hough likewise held that the Limited Liability Act was for the benefit of commerce and therefore for the public benefit, and that it bound the United States. After a reference to the authorities, he said:

“It therefore becomes necessary under the guidance of the highest court to examine any statute of limitations, whether the limitation be a contraction of time or a restriction of rights, to ascertain whether that statute is obnoxious not to the prerogative or power of republican governments either state or national, but whether the restriction of the statute is for the public good when applied to that sovereignty which is the embodiment of the people’s power.”

He concluded:

“In this litigation it is neither shown nor suggested that the government in accepting its pro rata share of the proceeds of the Florida is suffering from the negligence or default of any of its officers or employes. The claim made (viewed from the standpoint of declaring the act inapplicable to the government) clearly rests upon prerogative only, and that ground for such a position has in my judgment never been adopted by any American court. ’ ’

The opinions in these two federal cases both cite Fink v. O’Neil, 106 US 272, 27 L ed 196, 1 S Ct 325, which holds that a statute of Wisconsin, which exempted a homestead from sale on execution, applied to an execution issued upon a judgment in favor of the United States in a federal court. The court said that undoubtedly it would be held by the courts of the state that the state would be bound by the exemption, and held that the United States, by an appropriate legislative act, had adopted the law of Wisconsin creating the exemption. The court quoted from United States v. Knight, 39 US 301, 10 L ed 465, in which it was said respecting the maxim nullum tempus: “The real ground is a great principle of public policy, which belongs alike to all governments, that the public interest should not be prejudiced by the negligence of public officers, to whose care they are confided,” and that when a statute “which proposes only to regulate the mode of proceeding in suits, does not divest the public of any right, does not violate any principle of public policy; but on the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution, the privilege of jail-limits; we shall best carry into effect the legislative intent, by construing the executions at the suit of the United States, to be embraced within the act of 1828.”

The opinion concludes:

“In the Magdalen College Case, 11 Coke, 66 b, Lord Coke, referring to Lord Berkeley’s Case, Plowd., 246, declares that it was there held that the King was bound by the Statute Be Bonis, 13 Edw. I., because, for other reasons, ‘It was an Act of preservation of the possession of noblemen, gentlemen and others,’ and ‘the said Act,’ he continues, ‘shall not bind the King only, where he took an estate in his natural capacity, as to him and the heirs male of his body, but also when he claims an inheritance as King by his prerogative.’ By parity of reasoning, based on the declared public policy of States, where the People are the Sovereign, laws which are Acts of preservation of the home of the family, exclude the supposition of any adverse public interest, because none can be thought hostile to that, and the case is brought within the humane exception that identifies the public good with the private right, and declares ‘That general statutes, which provide necessary and profitable remedy for the maintenance of religion, the advancement of good learning and for the relief of the poor, shall be extended generally according to their words;’ for civilization has no promise that is not nourished in the bosom of the secure and well ordered household.”

It will be seen that one of the grounds of the decision was that the law was passed “for the relief of the poor.” Like the Hamburg-Amerikanische case and the case of The Florida, it falls within Chitty’s exception of “statutes passed for the public good.”

The rules of construction in cases of this kind are thus summarized by an eminent authority on statutory interpretation:

“* * * It follows that not only the divesting or not divesting of any public right is to be regarded, but also the violation of principles of public policy. The test, therefore, in every case in which the question whether or not the government is included in the language of a statute has to be met and determined, cannot be a mere general rule, either one way or another, arbitrarily applied, but must be the object of the enactment, the purposes it is to serve, the mischiefs it is to remedy, and the consequences that are to follow,—starting with the fair and natural presumption that, primarily, the Legislature intended to legislate upon the rights and affairs of individuals only. This is the only proper extent and application of the rule against inclusion of government.” Endlich on Interpretation of Statutes 232, § 167.

The contestants call our attention to the cases of State ex rel. v. Peoples West Coast Hydro-Electric Corp., 129 Or 475, 479, 278 P 583, and State ex rel. v. Hawk, 105 Or 319, 334, 208 P 709, which are said to be authority for the view that the water code is generally applicable to state departments and commissions. The former of these eases was a condemnation proceeding by the state upon the relation of the state board of fish and game commissioners, commenced for the purpose of condemning certain land in Hood River County for use in connection with propagation, hatching and feeding of salmon and other food fishes. In order to use the land for the purposes intended it would have become necessary to interfere with the water of Herman Creek.

In 1915 the legislature passed an act (ch 36, General Laws of Oregon 1915), which provides:

“Section 1. The following streams and waters thereof forming waterfalls in view of, or near, the Columbia River Highway, from Sandy River to Hood River, are herewith withdrawn from appropriation or condemnation, and shall not be diverted or interrupted for any purpose whatsoever, except as hereinafter mentioned, to-wit [naming certain streams, including Herman Creek, in Hood River County].

“Section 2. This Act shall not prevent the condemnation for public park purposes of any lands through which any of said streams flow, nor affect vested rights or the rights of riparian proprietors of such lands in, or to the waters of said creeks or streams.”

The court held that this act was a plain revocation of authority for the condemnation of land in connection with or bordering upon the streams mentioned in the act, and reversed a judgment in favor of the plaintiff.

In 1921 § 2 of the act of 1915 was amended by ch 373, General Laws of Oregon 1921, so as to read as follows:

“This act shall not prevent the condemnation for public park purposes of any lands through which any of said streams flow, nor effect [affect] vested rights or the rights of riparian proprietors of such lands in or to the waters of said creeks or streams, nor shall it prevent the condemnation of any lands through which any of said streams flow, for the purpose of establishing, maintaining and operating thereon salmon fish culture work, nor shall this act prevent the fish commission of the state of Oregon from appropriating any of said waters for fish culture work; provided, however, that no waters shall be taken from above the falls in the streams mentioned in section 7113 of Oregon Laws.”

At the same session of the legislature at which the 1915 act was amended in the manner above stated, there was also enacted what is now § 83-204, OCLA [Oregon Laws 1921, ch 105, §5 (c)], which gave the fish commission “full power and authority to use so much of the state funds under its control as may be necessary for the acquisition of land, water rights and easements and other property” (italics added).

The 1915 act, as thus amended in 1921, now comprises §§ 116-469 and 116-470, OCLA. After the amendment, in the case of State ex rel. v. Peoples West Coast Hydro-Electric Corp., supra, the state sued to enjoin the defendant from diverting the waters of Herman Creek. The question was one of priority of rights as between the parties to the suit. The court in its discussion of the claim of the state said:

“* * * Although the state made use of the waters of Herman Creek in the operation of its hatchery for the first time in 1915 and has continuously used the same since said time, it acquired no right to the water by appropriation because by an act of the legislative assembly, Chapter 36, Laws of 1915, now Sections 7113 and 7114, Or. L., the waters of certain streams flowing into the Columbia River, including Herman Creek, were withdrawn from appropriation and this prohibition was held to be applicable to the State Fish Commission in State ex rel. v. Hawk, 105 Or. 319 (208 Pac. 709, 209 Pac. 607). This bar of the statute against the State Fish Commission was withdrawn by Chapter 373, Laws of 1921, but no application was made by the State Fish Commission for a permit to appropriate such waters until November 15, 1922, when a permit was granted to the State Fish Commission by the State Engineer to make such appropriation. Because of these facts, it was admitted upon the argument that the state had acquired no legal right by appropriation to the waters of Herman Creek until November 15, 1922.”

In two respects these decisions have a bearing on the present question. They afford, first, an illustration of a statute drawn in general terms which did not mention the state, but which was held nevertheless to bind the state. The rule of state immunity from general legislation was not discussed either in the briefs or in the opinion of the court in the Hawk case. Nevertheless, the decision that the legislative prohibition against the condemnation and appropriation of the waters of Herman Creek applied to the state, necessarily must be regarded as a holding that the statute fell within some exception to the general rule. Second, these decisions further indicate that, when a state agency exercising a power granted to it by the legislature, undertakes to appropriate any of the waters of the state, it must do so pursuant to the provisions of the water code, and that in a controversy with a private owner of water the state is subject to the same rules of law that govern the rights of the private litigant. And, while it is true that there is probably now no statute under which the state may appropriate water for irrigation purposes, it is also true that the state may, as in this instance, become the owner of an appropriated water right by succeeding to ownership of the land to which the water right is appurtenant. It is that kind of a case with which we are dealing.

Effort is made to distinguish the statute construed in the Hawk case from the statute with which we are here concerned by reference to the language of the former, the prohibition of which is said to be all inclusive. But so is the language of § 116-437, OCLA. No more comprehensive terms could have been employed than “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state.” Generally speaking, however, argument of this sort is beside the point, because the question whether the state is exempted from the application of a statute by reason of the rule nullum tempus can only arise when the language of the statute is broad enough to include the state. It then becomes a matter of judicial interpretation, under the principles heretofore discussed, to determine whether or not that rule is to be applied.

The argument that irrigation districts might lose their water rights for nonuser, if the statute in question should be held applicable to the state, is entirely beside the point. An irrigation district is a quasi-municipal corporation. Central Pacific Co. v. Ager, 144 Or 527, 533, 25 P2d 927. It is not the state, nor an agency of the state in the same sense as the State Land Board is an agency of the state. Were we called upon to determine whether irrigation districts are bound by the provisions of § 116-437, OCLA, we would not be in the least concerned with the maxim, nullum tempus,. which applies only to the sovereign, but with very different considerations, such, for example, as the purposes which irrigation districts are intended to serve under.the statute which authorizes their creation.

The problem here is to determine whether the statute of this state under which a water right is lost by failure to put the water to beneficial use for a period of five successive years was passed for the public good in the sense of those words as they relate to the present subject. We may agree with counsel for the contestee that, for certain purposes, all laws are presumed to have been passed “for the public good”; but we do not agree that the sort of legislation referred to in this phrase is limited by the words which follow it in the passage quoted from Chitty, to wit: “the relief of the poor; the general advancement of learning, religion,. and justice; or to prevent fraud, injury or wrong.” These are examples of laws passed for the public good; they do not exclude all others. The determinative factor is whether “the controlling motive” of the statute is the general good of the state. As the court said in the Hamburg-Amerikanische case: “If the public purpose is clear, the legislative intention is not to be defeated by the fact that the immediate benefit may be private and individual.”

In the opening phrase of the statute, “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state,” the legislature has declared the policy which inspired its enactment. This, we think, was to promote the prosperity and welfare of the state by encouraging the use of water and keeping its waste to a minimum. It is the policy recognized by this court when it said in In re Waters of Deschutes River, 134 Or 623, 666, 286 P 563, 294 P 1049: “Water is too precious an article in the arid region, or semi-arid region, to be permitted to run to waste. ” It is scarcely necessary to elaborate upon a theme so familiar to the people of this region; yet it may not be amiss to remind ourselves of the important part which water has played in the development of the Far Western country, and continues to play in the maintenance of its welfare, by quoting from the opinion of Mr. Justice Sutherland, himself a product of the state of Utah, in the ease of California Oregon Power Co. v. Beaver Portland Cement Co., 295 US 142, 156, 79 L ed 1356, 55 S Ct 725. Speaking there of the construction to be given to the Desert Land Act of 1877, he wrote:

“For the light which it will reflect upon the meaning and scope of that provision and its bearing upon the present question, it is well to pause at this point to consider the then-existing situation with respect to land and water rights in the states and territories named. These states and territories comprised the western third of the United States —a vast empire in extent, but still sparsely settled. From a line east of the Bocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico—an area greater than that of the original thirteen states—the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation.

“In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed dry and desolate lands into green fields and leafy orchards. In the success of that effort, the general government itself was greatly concerned —not only because, as owner, it was charged through Congress with the duty of disposing of the lands, but because the settlement and development of the country in which the lands lay was highly desirable.”

Under the statute in question, failure of “the owner of a perfected and developed water right” to use the water appropriated for a period of five successive years works a forfeiture of the right, not for the benefit of any individual as in the case of an ordinary statute of limitations—which this is not-—but for the benefit of the public, to the end that the “water right shall revert to the public and become again the subject of appropriation in tbe manner provided by law.” Here again, is a statement as clear as words can make it of the public policy behind the statute. Cities and towns are excepted, and special provision made for them in view of their need to anticipate their supplies of water because of growth of population. The state is not mentioned. Ordinarily, this omission would be without significance and the presumption would be applied that “acts of the legislature are meant to regulate and direct the acts and rights of citizens.” United States v. Hoar, supra. But, in view of the decisions in State ex rel. v. Peoples West Coast Hydro-Electric Corp. and State ex rel. v. Hawk, and the purpose of the legislation, we think that it must be held to apply to the state. The waste of water by failure of an agency of the state to put it to beneficial use is no less an injury to the common good than a similar waste by a private individual. The terms of § 116-437, OCLA, constituted a condition of the right held by the state’s predecessor in interest, Robert C. Lowe; and, when the state succeeded to his ownership of the land and its appurtenant water right, it took it burdened with the obligation which the statute imposes and subject to the loss of the right should the obligation not be fulfilled. The state acquired, and could only acquire, what Lowe himself owned. And it became owner of the water right, not in its capacity as trustee for the public, but in a special capacity incident to the discharge of its duties, through one of its agencies, under the World War Veterans State Aid Act.

It is true that, under the construction we place upon this act, the state may on occasion lose a portion of the public revenue by failure of its officers to use the right during the statutory period. But “not only the divesting or not divesting of any public right is to be regarded, but also the violation of principles of public policy. ” Endlieh, op. cit. Here the public policy is manifest, and any other construction would tend to diminish the value of the act and to defeat what we conceive to be the intention of the legislature. United States v. Hamburg-Amerikanische Packetfahrt Actien Gesellschaft, supra.

Our conclusion accords with an opinion of the attorney general, rendered at the request of Charles E. Stricklin, secretary of the State Reclamation Commission and state engineer, under date of September 9, 1942 (Biennial Reports and Opinions of the Attorney General 1942-1944, p. 48). Presumably the state officials charged with the responsibility of administering the Water Code have acted upon that opinion, thus bringing to the support of the view we take the added weight of administrative construction.

Prior to the reargument the attorney general, at the request of the court, prepared and filed a brief amicus curiae. For the aid thus given us by the attorney general and his deputy the court desires to express its appreciation.

The decree is affirmed without costs or disbursements to any of the parties.