California-Oregon Power Co. v. Beaver Portland Cement Co. ( 1934 )

MACK, Circuit Judge.

Plaintiff is the owner of land on the east side of the Rogue river, a meandering non-navigable stream in Oregon, directly opposite land on the west side, the legal title to which is in defendant city of Gold Hill; defendant Cement Company has possession of the city’s land under an executory contract of purchase. Ownership in each case extends to the thread of the stream. Pursuant to its plan to build a dam and power plant on the west side of the river, Cement Company exploded charges of dynamite in reefs in the river bed but entirely west of tho thread of the stream, for the purpose of permitting a freer flow of water down the west side of the river and of securing an available supply of broken rock for the construction of the dam. Plaintiff, claiming that the prosecution of these operations would divert the water from its land on the east side of the river and interfere with its rights as a riparian owner on the stream, sought an injunction to prevent defendants carrying on further blasting operations, removing the blasted rock from the bed of the stream, and doing anything else that would change the bed of the stream or lessen the flow of water over plaintiff’s side of the river bed. The injunction as prayed for was denied but, to insure that some water would continue to flow down the plaintiff’s side of the stream, defendants were enjoined from reducing the surface elevation of the water at the contemplated point of diversion below 1,070.056 feet above sea level. From this decree, plaintiff alone appeals.

Plaintiff’s principal contentions are that by the rule of the common law a riparian owner on a nonnavigable stream has a vested right to the natural flow of the stream not substantially diminished or diverted from its natural course; that this rule of “continuous flow” was part of the law of Oregon when plaintiff’s lands were acquired by its predecessors from the government in 1885; and that the vested property right thus created is protected as against changes in the Oregon law by the Federal Constitution. Defendants deny that the common law rule created vested claims of continuous flow; they base their own claims on adjudicated rights and permits under tho Oregon Water Code of 1909 (Laws Or. 1909, p. 319).

1. This Code establishes a comprehensive system for the adjudication of water rights; there is therein provision both for the determination of existing rights and for the acquisition of new rights. Section 11 of the Code provides: “Upon a petition to tho state .engineer signed by one or more water users upon any stream, requesting the determination of tho relative rights of the various claimants to the waters of that stream, it shall be the duty of the state engineer, if, upon investigation he finds the facts and conditions are such as to justify, to make a determination of tho said rights. * * * In ease suit is brought in the circuit court for the determination of rights to the use of water, the case may, in the discretion of the court, be transferred to the state engineer for determination as in this act provided.” Or. Code Ann. 1930, § 47-601. In either case the determination of the state engineer does not become final until confirmed by the eireuit court of the county in which the determination is had. Id. § 47-614. Section 45 of the Water Code provides: “Any person, association or corporation hereafter intending to acquire the right to the beneficial use of any waters shall, before commencing the construction, enlargement or extension of any ditch, canal or other distributing or controlling works, or performing any work in connection with said construction, or proposed appropriation, make an application to the state engineer for a permit to make such appropriation.” Id. § 47-501. After the appropriation is completed, the party is entitled to a certificate of water rights, from the state engineer, like that granted after an adjudication. Id. § 47-508.

In the operation of its power plant, Cement Company purposes utilizing a maximum of i.,397 second feet of water. Of this amount, 295 second feet have been recognized in an adjudication under the Code; the other 1,102 second feet are covered by water permits issued .by the state engineer under section 45. Plaintiff, although it denies that it was a party to that adjudication and therefore bound by that decree, does not contest defendants’ right to-use the 295 second feet. It contends, however, that that amount is now available to defendant without necessitating any change in the river bed. Defendants’ permits for the other 1,102 second feet, plaintiff contends, are “mere options,” which cannot justify interference with the rights of other riparian owners.

The District Judge, as an alternative ground for the denial of the injunctive relief sought, relied upon plaintiff’s failure to avail itself of the procedure provided by the Water Code for the determination of its rights. An invitation to further proceedings in the state courts was thought by him to be implicit in the earlier opinion of this court in a related controversy between the same parties, City of Gold Hill v. California Oregon Power Co., 35 F.(2d) 317 (1929), in which the questions now at issue were expressly reserved from decision. Cf. Pacific Livestock Co. v. Silvies River Irr., Co., 200 F. 487 (C. C. A. 9, 1912).

The procedure established by the Water Code is in part at least administrative; it has been sustained in that aspect against constitutional attack both by the Oregon courts and the United States Supreme Court. In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475 (1914); Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 36 S. Ct. 637, 60 L. Ed. 1084 (1916). Therefore the question arises whether or not plaintiff should have been relegated to the state tribunals on the principle that one who seeks injunctive relief in the federal courts must first exhaust the administrative remedies which the state provides. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908); Porter v. Investors’ Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226 (1932). In both of these eases, the injunction was sought against the administrative body itself on constitutional grounds; in the instant case, the suit is between private parties and jurisdiction is based solely on diversity of citizenship. - The principle of comity,- which dissuades the federal court from enjoining the enforcement of state administrative determinations before they have been concluded, may be equally applicable, however, to justify a refusal to entertain a private suit which would in effect check or prevent the functioning of the administrative body. The decree of the court might in such a ease conflict with adjudications by the administrative body of other water rights on the same stream and thus create just such a chaotic condition as the administrative determination of the water rights is designed to prevent.

In Oregon a suit involving water rights may be instituted in the state circuit eotírt, and in the discretion of the court, the issues may be referred to the state engineer for preliminary determination. But the circuit court, whether in reviewing the state engineer’s determination or in making an original disposition of the suit, is not acting in an administrative capacity; its determination is res adjudicata as to all parties and issues properly before it. Abel v. Mack, 131 Or. 586, 283 P. 8 (1929); Cf. In re Waters of Walla Walla River, 141 Or. 493, 502, 16 P. (2d) 939, 943 (1932). To compel plaintiff first to establish its rights in the circuit court of the state would therefore result in denying it entirely its right to begin proceedings in the federal courts. Cf. Railroad and Warehouse Commission v. Duluth Street Ry. Co., 273 U. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 (1927); City Bank Farmers’ Trust Co. v. Schnader, 291 U. S. 24, 54 S. Ct. 259, 78 L. Ed. 628 (1933). Whether the circuit court would be required to refer such a case as this to the state engineer for preliminary determination is at least doubtful. It has been reversed for failure to do so when the evidence was conflicting and the rights of those not party to the suit were likely to be affected. Oregon Lumber Co. v. East Fork Irrigation District, 80 Or. 568, 157 P. 963 (1916); Pacific Livestock Co. v. Balcombe, 101 Or. 233, 199 P. 587 (1921). But in the'instant case, the rights of only the immediate parties are involved. Moreover, it is doubtful whether the administrative procedure provided by the state is adapted to the determination of such claims as those of plaintiff. The function of an adjudication under the Code is primarily ■to allocate definite quantities- of water on the basis of prior or contemplated use. Plaintiff, however, claims the right to an indefinite quantity of w*ater, namely the natural flow of the stream, on the basis of its riparian ownorship. As the Oregon court lias said: “By reason of the fact that the old riparian right doctrine does not provide for a fixed quantity of water to- be apportioned to different persons or traets of land, the rule * * '* cannot be worked out or applied under the Water Code of 1909 in the adjudication of the relative rights of the various claimants to the use of water of a stream system.” Re Water Rights of Hood River, 114 Or. 112, 162, 227 P.1065, 1081 (1924).¹

Thus plaintiff stands on rights alleged to have become vested independently o£ the Water Code a,nd the procedure thereby established. In the light of all of these considerations, we conclude that the principle that one must exhaust the administrative remedies provided by the state before seeking injunctive relief in the federal court is inapplicable to the instant case.

2. Plaintiff contends that its right as riparian owner to have the stream continue to flow substantially undiminislied in its natural -channel is established by Weiss v. Oregon Iron & Steel Co., 13 Or. 496, 11 P. 255 (1886) and other cases. In the Weiss Case, an upper riparian owner was enjoined from diverting water permanently for manufacturing purposes and thus diminishing substantially the flow of water to the lands of the plaintiff, a lower riparian owner. The court said: “The defendant, as riparian owner, has a right to the use of the stream for its own necessary uses; hut this right must be reasonably exercised, and there must be no substantial diminution or waste. * * '* What is a reasonable use must necessarily depend upon the facts, considering the size of the stream and the amount appropriated. But all the authorities concur that when the amount abstracted perceptibly or materially diminishes the quantity of the stream, such use of it by a riparian owner is unreasonable, and an-infringement on the rights of other riparian owners, for which the law furnishes redress. The plaintiff is entitled to have the natural flow of file water, in its accustomed channel, subject only to the diminution and retardation incident to a reasonable use.” 13 Or. at page 500, 11 P. at page 257. This rule of natural or continuous flow was also applied in Cox v. Bernard, 39 Or. 53, 64 P. 860 (1901), and Mace v. Mace, 40 Or. 586, 67 P. 660, 68 P. 737 (1902). At the same time, however, rights acquired by appropriation while a stream was flowing through public- lands were recognized as superior to riparian rights subsequently arising. Carson v. Gentner, 33 Or. 512, 52 P. 506, 43 L. R. A. 130 (1898); Brown v. Baker, 39 Or. 66, 65 P. 799, 66 P. 193 (3901). It was also said to bo “established doctrine in this state that a settler upon public lands * * * may claim the use of water, either as a riparian owner or as an apprOpriator, hut he cannot do both. The exercise of one right is in substance a waiver of the other.” Caviness v. La Grande Irr. Co., 60 Or. 410, 421, 119 P. 731, 735 (1911).

In Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728 (1909), the court thoroughly considered the effect on Oregon water law of the Federal Desert Land Act of March 3, 1877, 19 Stat. 377, 43 U. S. 0. § 323. (43 USCA § 321). That act contained provision that “ * * * all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.” This provision was interpreted as a permanent reservation and dedication to- the public, with the result that “all lands settled upon after the date of the latter act were accepted with the implied understanding that (except as hereinafter stated) the first to appropriate and use the water for the purposes specified in the act should have the superior right thereto.” 51 Or. at page 399, 98 P. at page 1095. The exception later stated was that appropriators would not he permitted so far to- deplete the flow as to deprive a riparian owner of water essential for his domestic needs. 51 Or. at page 404, 98 P. at page 1097. So long as this right of domestic use was not infringed, the riparian owner whose lands had been settled after the act could not object to ap appropriation of water which diminished the flow of the stream.

The Oregon Water Code, adopted in 1909 after the decision in Hough v. Porter, does not specify what consideration, if any, is to be accorded in tbe determination of water rights to a riparian owner merely because of such ownership. Section 1 provides: “Subject to existing rights, all waters within the state may be appropriated for beneficial use, as herein provided, and not otherwise; but nothing herein contained shall be so construed as to take away or impair the vested right of any person, firm, corporation, or association to any water.” Or. Code Ann. 1930, § 47-402. Section 70 of the Water Code, in explanation of vested rights, provides: “2. 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.” Id. § 47-403.

These and related provisions of the Code were definitely construed in Re Water Rights of Hood River, 114 Or. 112, 227 P. 1065, 1079 (1924), to abolish the rule of continuous flow contended for by plaintiff in the instant ease. That was an adjudication under the Code, in which the Pacific Power &' Light Company stood on its alleged right as a riparian owner to have the stream flow “undiminished by the acts or appropriations' of others above its said lands, other than by the reasonable use thereof by upper riparian owners for watering live stock and for domestic purposes, and by the reasonable use by such riparian owners of the waters of such stream for the irrigation of lands actually riparian to said stream.” By a four to three decision this claim was denied. Mr. Justice Bean, writing for the majority of the court, said: “The granting of the contention of the Pacific Power & Light Company, and going back to the old rule of ‘continuous flow’ of a stream, would take the heart out of the Water Code. * * *” 114 Or. at page 162, 227 P. at page 1081. He also expressed the opinion that the common-law rule under which “the riparian owner was entitled to the full flow* of the stream through his land, except as the flow might be affected by a reasonable use made thereof by other riparian owners,” had never been adopted to the full extent in Oregon. As to this, however, a majority of the court disagreed with him. Nevertheless, a majority held that the Water Code in any event had abolished the rule of continuous flow as to lands acquired before as well as those acquired after its adoption, and that the provision therein saving vested rights was limited to rights acquired through “actual application of water to beneficial use,” as defined in section 70. A minority, on the other hand, were of the opinion that the Code could, and to avoid constitutional difficulties should, be interpreted so as to preserve as vested rights the riparian rights of proprietors of lands which had passed into private hands while the rule of continuous flow prevailed in Oregon.

3. The Hood River Case as well as Norwood v. Eastern Oregon Land Co., 112 Or. 106, 227 P. 1111, decided on the same day, involved lands which passed from the government prior to the Desert Land Act of 1877. In the instant ease, plaintiff’s rights date back only to 1885, the date of the government patent on which its title is based. We come, therefore, to the question of the interpretation of that act and primarily to the consideration of Hough v. Porter, supra.

The Desert Land Act was passed for the purpose of facilitating the settlement of the public domain arid land by permitting title to be acquired thereto by one who declared his intention of reclaiming it and who completed the reclamation within the prescribed period. The right to the use of water by one so conducting it upon desert land is limited to the “amount of water actually appropriate^, and necessarily used for the purpose of irrigation and reclamation”; then follows the provision relied on in Hough v. Porter that “all surplus water * * * together with the water of all lakes, rivers, and other sources of water supply upon the public lands * * * shall remain and be held free for the appropriation and use of the public. • * * » Of this provision, the court in Hough v. Porter, said: “This reservation of water rights for the benefit of the public was clearly not essential to any of the other provisions of the act. The previous statement contained sufficient to define and protect the rights of those selecting lands under the desert land act; but the added proviso, or something of similar import, was essential to the establishment of a clear and uniform rule upon the subject as regards all appropriations thereafter to be made from streams or other bodies of water upon the public lands and to which such might be riparian. The words ‘shall remain and be held free for the appropriation and use of the public for irrigation,’ etc., are clearly words of reservation and dedication, and obviously so intended.” 51 Or. at page 386, 98 P. at page 1091.

This reservation and dedication, it was concluded, had the effect of permanently severing from the lands then owned by the gov-eminent and subsequently granted by it, the right which the riparian owner might otherwise have, to object to an appropriation of water not already put to a beneficial use.

Both the reasoning and the result of Hough v. Porter have been unqualifiedly adopted by the Supreme Court of South Dakota in Cook v. Evans, 45 S. D. 31, 185 N. W. 262 (1921), and Haaser v. Englebrecht, 45 S. D. 143, 186 N. W. 572 (1922); and the grounds of the decision wore termed “plausible” in Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 344, 29 S. Ct. 493, 53 L. Ed. 822 (1909), a ease from the Supreme Court of Arizona (11 Ariz. 128, 89 P. 504) in which the question was raised but not decided.

In Washington and in California, however, a narrower interpretation of the Desert Land Act has been adopted. In Still v. Palouse Irr. & Power Co., 64 Wash. 606, 117 P. 466 (1911), lower riparian owners successfully objected to an upper riparian owner so impounding the water as materially to alter the natural flow of the stream by and through the plaintiffs’ land. The contention that the plaintiffs had no riparian right to the natural flow, as against an actual appropriation by defendant because their lands were acquired from the government after the act of 1877, was denied on the grounds that the plaintiffs’ lands were not acquired under, even though after, that act and that no valid and existing appropriation of water had been made by defendant or its predecessors prior to the vesting of plaintiffs’ riparian rights. See, too, Bernot v. Morrison, 81 Wash. 538, 559, 143 P. 104, 111, Ann. Cas. 1916D, 290 (1914). In San Joaquin & Kings River Canal & Irr. Co. v. Worswick, 187 Cal. 674, 203 P. 999 (1922), the plaintiffs contended that their rights of appropriation were superior to the defendants’ right as upper riparian owners to use the waters of the stream, because the defendants’ lands were acquired from the government after 1877. In disposing of this contention the California court said: “It is obvious from the framework and language of the aet of 1877 that it was not intended to apply to all the public lands of the United States. Its main purpose was to provide for the sale of desert lands which could he reclaimed by bringing water thereon. It may be true that as to such lands the purpose was to divert the riparian rights in the waters existing thereon and devote the same to the public uses stated. Wo do not think that question is involved in the present case, and we need not express any opinion on it. There is nothing in the aet which justifies giving that particular part thereof so wide an application as to embrace all lands of the United States, wherever situated. The plaintiffs do not claim that any of the land belonging to the defendants was purchased or acquired under the Desert Land Act, and there is no finding that in fact such lands were desert lands. * * * It follows from what we have said that the rights of the plaintiffs under their appropriations are not affected by the provisions of the Desert Land Act.” 187 Cal. at page 690, 203 P. at page 1006.

In these decisions, Washington and California do not limit the right of appropriation to desert lands, recognizing that appropriations of water running through any public lands, whether desert lands or not, may be entitled to priority over subsequently acquired riparian rights. The California and Washington rule does, however, limit the application of the reservation provision of the act to lands acquired thereunder, in so far as, if at all, the effect of the aet is permanently to subordinate to the right of appropriation the riparian rights in lands then owned and-subsequently granted by the government.

The legislative history of the Desert Land Act as found in Cong. Rec. 44th Cong. 2d Session, vol. 5, pt. 3, pp. 1961, 1964-1974, 2225, comports better with the narrow interpretation accorded it by Washington and California than with the broad interpretation of Hough v. Porter. By the act of 1866, Congress had already provided that rights to the use of water upon public lands, acquired by appropriation and recognized by “the local customs, laws, and the decisions of courts,” should he maintained and protected. R. S., § 2339, 43 U. S. C., § 661 (43 USCA § 661). By the act of 1870, it was further provided that all patents granted or pre-emption or homesteads allowed should be subject to any vested and accrued water rights acquired under or recognized by the act of 1866, R. S. § 2340, 43 U. S. C. § 661 (43 USCA % 661). Of this legislation, a distinguished writer says:

“The act of 1866 gave the formal sanction of the United States to the prevailing theory of a grant to the holders of existing rights upon public land, which indeed was its primary object; for the statute had in view chiefly appropriations already made rather than future ones, and the protection of existing rights on public land against the United States itself (by tbe act of 1866) and against its later riparian patentees (by the enactment of 1870 was the primary object. * * *

“It further provided the same method for acquiring water rights on public land in the future; a vindication of the existing system for the future as well as for the past; * * *

“But as we proceed we must remember that it was wholly public land law, involving solely rights in the unoccupied public domain. * * * ” 1 Wiel, Water Rights in the Western States (3d Ed. 1911) 116.

The Desert Land Act, as originally reported to the Senate by the Committee on Public Lands, did not contain the provision limiting the right to the use of water by one acquiring under the act, to the amount needed for reclamation and reserving all surplus water and other waters on the public domain to the use of the public. Indeed, the committee expressed the belief that no further legislation was necessary to regulate the use of water for purposes of irrigation. The provision now in question originated as an amendment offered on the floor of the Senate for the avowed purpose of preventing one who should acquire his lands under the act, from securing a monopoly over more water than was reasonably required for his own tract; it was modified in the course of debate to avoid the suggested possibility of conflicting with the act of 1866. Sfevertheless, the act of 1877, literally interpreted, goes further than the previous legislation, in that it reserves to the public the right of appropriating water on all public lands regardless of whether or not such a right is recognized by “local customs, laws, and the decisions of courts.” But neither the language nor the history of the act, fairly interpreted, supports the holding in Hough v. Porter that appropriations made after the government had parted with its title to the land outrank the riparian rights which state law would otherwise attach to government grants other than those under the Desert Land Act itself.

Furthermore, the interpretation of the Desert Land Act in Hough v. Porter is inconsistent with the general doctrine that each state “may determine for itself whether the eommon-law.rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule ■upon any state.” State of Kansas v. Colorado, 206 U. S. 46, 94, 27 S. Ct. 655, 666, 51 L. Ed. 956 (1907). See, too, United States v. Rio Grande Dam & Irr. Co., 174 U. S. 690, 702, 19 S. Ct. 770, 43 L. Ed. 1136 (1899); United States v. Central Stockholders’ Corp. of Vallejo, 52 F.(2d) 322, 329 (C. C. A. 9, 1931); 2 Kinney, Water Rights (2d Ed. 1902), § 817.

Whether or not the riparian rights of owners of land acquired from the government under the Desert Land Act itself are affected by the act we need not consider, since there is no suggestion that plaintiff’s lands were so acquired. We conclude that the Desert Act of 1877 did not require the state of Oregon to abandon the rule of “continuous flow” as to all riparian lands in that state settled on and patented after its enactment.

Whether Hough v. Porter should be deemed an authoritative determination of Oregon law as to the relative rights of appropriators and riparian owners of such lands, notwithstanding what we deem to be the erroneous reasons on which alone it is based, and, if so, whether it should be followed in the federal courts although involving a change of the common law in- force in 1885, the date of the government patent, by court decision rendered in 1909, we need not decide, if the Hood River Case and the Water Code of 1909 can withstand plaintiff’s attacks on constitutional grounds.

4. We proceed then to a consideration of plaintiff’s principal contention, that the riparian right to the continuous flow of the stream is a property right which became vested in its predecessors and was passed on to it, and that to deprive it thereof either by legislation or by judicial decision would violate its federal constitutional rights. Clearly riparian rights are substantial property rights which may not be arbitrarily destroyed; they may be taken, for example, under the laws of Oregon and of other states in eminent domain proceedings. . Or. Laws 1891, p. 52, § 8; Umatilla Irrigation Co. v. Barnhart, 22 Or. 389, 30 P. 37 (1892); Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R. A. 628 (1902); St. Helena Water Co. v. Forbes, 62 Cal. 182, 45 Am, Rep. 659 (1882). Like other property, however, riparian rights are subject to the police power of the state and within reasonable limits may be modified by legislation passed in the interest of the general welfare.

In several western states where the common-law rule of riparian rights was first adopted and then wholly or partly abandoned for the doctrine of appropriation, the question of the extent to which existing riparian rig'hts may be and are thereby affected has been considered. In Clark v. Cambridge & A. Irr. & Imp. Co., 45 Neb. 798, 64 N. W. 239 (1895), the plaintiff, a lower riparian owner, sought to enjoin interference with Ms nse of the stream for power purposes by the defendant which claimed a right of appropriation under the Irrigation Act of 1889. This act provided: “The right to the use of running water flowing in a river, * * * may be acquired by appropriation by any person * pi-OvicL0d that in all streams not more than twenty feet in width, the rights of riparian proprietors are not affected by the provisions of this act.’.’ Although the stream in question exceeded twenty feet in width the statute was held to be ineffective to impair the plaintiff's riparian rights, because, “assuming such to have been the intention of the legislature, it is a clear invasion of private rights, and within the prohibition of the constitution.” In Crawford Co. v. Hathaway, 67 Neb. 325, 313, 93 N. W. 781, 787, 60 L. R. A. 889, 108 Am. St. Rep. 617 (1903), other irrigation statutes of the state were construed to authorize the condemnation of riparian water rights but not otherwise to impair them, because “the rights of riparian proprietors to the use of the waters flowing in the streams to which their lands are adjacent, when once attached, is * * * a vested right of property, v * * which the owners cannot rightfully be deprived of or divested except by grant, prescription, or condemnation, with compensation by some of the means and methods recognized by law for the taking or damaging of private property for public use.” A similar construction was applied on like grounds to the Kansas statutes, permitting water to be appropriated for purposes of irrigation, in Clark v. Allaman, 71 Kan. 206, 80 P. 571, 70 L. R. A. 971 (1905), and to Texas appropriation statutes in McGhee Irrigation Ditch Co. v. Hudson, 85 Tex. 587, 591, 22 S. W. 398, 967 (1893). See, too, Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758 (1898).

In St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. D. 260, 143 N. W. 124, 127 (1913), in a suit by one claiming as an appropriator under the statute against several defendants, some of whom claimed the right to use the water of the stream as riparian owners, it was held that a statute requiring any one seeking to make a beneficial use of water, to secuto a permit from the state engineer, was invalid as to riparian proprietors, because it conflicted with the state constitutional provisions protecting private property. The court said: “The right of a riparian owner to make a reasonable beneficial use of the waters of a flowing stream for domestic and irrigation purposes is a vested property right and is entitled to protection to the same extent as property rights generally.”

It should be noted that the riparian right of which the court is speaking in this case is the affirmative right to nse the water for certain purposes, not the right to prevent others from diverting it.

In Nielson v. Sponer, 46 Wash. 14, 89 P. 155, 123 Am. St. Rep. 910 (1907), a statute (Ballinger’s Ann. Codes & St. Wash. § 4114) providing that “the person upon whose lands the seepage or spring waters first rise shall have a prior right to such waters, if capable of being used upon his lands,” did not justify an upper riparian owner upon whose lands a stream so’ originated, in using up the water for irrigation so as to prevent its nse for ordinary domestic purposes by lower riparian owner's whose lands had been patented before the statute.

In Boquillas Land & Cattle Co. v. St. David Co-op-Commercial & Development Ass’n, 11 Ariz. 128, 89 P. 504, 507 (1907), the plaintiff, relying upon its common-law riparian rights, sought to enjoin the defendants from entering upon its land for the purpose of reconstructing a dam and diverting water in accordance with an appropriation made before the plaintiff had made any nse of the water of the stream. The First Legislature of the Territory of Arizona had provided, in 1864, that “the common law of England so fax as it is not xepugnant to or inconsistent with the Constitution and laws of the United States or the Bill of Rights or the laws of this territory is hereby adopted and shall be the rule of decision in the courts of this territory.” The Bill of Rights, however, provided: “All streams, lakes, and ponds of water capable of being used for the purpose of navigation or irrigation are hereby declared to be public property * * In 1887, the Legislature enacted that “the common law doctrine of riparian water rights shall not obtain or be of any force or effect in this territory.” The Supreme Court of Arizona denied plaintiff’s claim of riparian right on the alternative grounds that the common-law doctrine of riparian rights had never applied in the territory of Arizona, and that “where the Legislature has, subject to future legislation, conferred riparian rights to the use of water from flowing streams upon riparian owners, the latter cannot be said to he vested in such a sense as that they may not be subsequently abrogated by statute, at any rate when the riparian owner has made no use of the water permitted him at common law.” The Supreme Court, 213 U. S. 339, 29 S. Ct. 493, 53 L. Ed. 822 (1909), in affirming the state court, rested the decision entirely on the first ground and did not consider the contention that the act of 1887, as interpreted by the Arizona court, deprived the plaintiff of property without due process of law.

. When states which recognize the doctrine of prior appropriation adopt a system for the administrative determination of water rights, the question has been raised whether or not the new system applies to water rights theretofore acquired. In Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 266, 50 L. R. A. 747, 87 Am. St. Rep. 918 (1900), the contention that the declaration- in the Constitution of Wyoming that all natural watei’s were the property of the state and the provisions of the Water Act of 1890 establishing a Boai’d of Control for the adjudication of water rights, could not validly be so applied, was overruled; the court said: “Where various rights are connected with the same stream or body of water, a subsequent claim cannot-be successfully regulated without including in the regulations all rights. The water to which the use of each attaches is public, and the people as a whole are intensely interested in its economical, orderly, and inexpensive distribution.” See, too, Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914); Humboldt Land & Cattle Co. v. Allen, 14 F.(2d) 650, 654 (D. C. Nev., 1926) affirmed 274 U. S. 711, 47 S. Ct. 574, 71 L. Ed. 1314 (1927).

Despite the emphasis in some state deci-. sions on the necessity of preserving riparian rights from impairment by judicial or legislative action, it cannot be doubted that in the course of the development of western water law, previously recognized riparian rights have been subjected to various modifications by legislative and by judicial action. After holding in Vansickle v. Haines, 7 Nev. 249 (1872), that the legislative adoption of the common law included the common-law doctrine of riparian rights, the court overruled this decision, and in Jones v. Adams, 19 Nev. 78, 6 P. 442, 3 Am. St. Rep. 788 (1885), adopted the rule of prior appropriation. See, too, Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364 (1889). In Brown v. Chase, 125 Wash. 542, 217 P. 23, 25 (1923), the court, departing from earlier general expressions in its opinions, held that a riparian owner was not entitled, as against an appropriator, to the undiminished flow of the stream if that flow was not of substantial benefit to him; it said: “ * * * -while this court has recognized the common-law riparian rights, it has also modified and enlarged that doctrine by in-grafting upon it the necessity of beneficial use by the riparian owner, refusing relief where the riparian owner was not substantially damaged, and granting relief where he was either presently or prospectively so damaged.”

And in Proctor v. Sim, 134 Wash. 606, 236 P. 114, 117 (1925), the same court said: “For years past the trend of our decisions and the tenor of our legislation have been to restrict and narrow the common law of riparian rights. * * * ” In harmony with that development, the provision of the 1917 Water Code of that state, saving “the existing rights of any riparian owner,” was construed to protect only “the right to the beneficial use of such portions of the waters of the lake as are either directly or prospectively, within a reasonable time, proper and necessary for the irrigation of their lands and for the usual domestic purposes.” For other instances of judicial modification of riparian rights, see the opinion of Judge Coshow in the Hood River Case, 114 Or. at page 193, 227 P. at page 1091.

In California, it has often been emphasized that riparian rights are substantial property rights which cannot arbitrarily be impaired or destroyed. It is recognized, however, that like other property rights, they are-subject to the police power of the state and may be modified within reasonable limits when the general welfare requires.²

In Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607 (1926), the court sustained the right of plaintiffs, lower riparian o-wners, to prevent defendants, upper riparian owners, from impounding the waters of the stream so as to deprive the plaintiffs of the benefits of annually recurring floods and freshets. In conformity with Palmer v. Railroad Commission, 167 Cal. 163, 138 P. 997 (1914), and San Bernardino v. Riverside, 186 Cal. 7, 198 P. 784 (1921), the court held that the defendant’s right of appropriation under the Civil Code, §§ 1410-1422, was subordinate to prior vested riparian rights in the natural flow of the stream. The defendant also contended that the plaintiffs’ riparian rights were limited by sections 11 and 42 of the Water Commission Act of 1913 (St. 1913, pp. 1017, 1033) which declared that all waters not applied to a “useful and beneficial purpose” or reasonably needed for such purposes were subject to appropriation in accordance with the provisions of the act, and that the term “useful or beneficial purposes” should not “be construed to mean the use in any one year of more than two and one half acre feet of water per acre in the irrigation of uncultivated areas of land. * * ** ” The court held section 11 inapplicable because the flood waters were beneficial to the plaintiffs and held the limitation in section 42 to two and one-half acre feet invalid on the ground that to allow the Legislature to determine the extent to which riparian owners could claim the beneficial use of water “would be to concede to the legislative department of the state government the arbitrary power to destroy vested rights in private property of every kind and character.” To this holding, however, the court added the qualifications: “ * * *■ If the state were here .essaying to uphold an effort on its part to work out impartially, unselfishly and in the interests of the whole people some general plan or system for the equitable adjustment of rights and uses in its flowing streams with a view to the conservation, development, and distribution of the dynamic forces and generative and fertilizing fructibilities of their waters, it might well be argued that public policy, public interest, and a most liberal interpretation of the police powers of the state might rightfully be invoked in support of such an effort.” 200 Cal. at page 120, 252 P. at page 623. Justice Shenk dissented on the ground that sections 11 and 42 constituted valid regulations in the interest of the conservation of the waters of the state, and that under those sections, a wasteful use of water by a riparian owner could not prevent a reasonable use by an appropriator.

In Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 259 P. 444, 449, 56 A. L. R. 264 (1927), the plaintiff, seeking to establish that its right of appropriation under the act of 1913 was superior to the riparian right of the defendant who was already using the flow of the stream for power purposes, contended that the act of 1913 was an exercise of the police power of the state which justified such a subordination of riparian rights. As to this, the court said: “We need here only say that the legislative department of the state may not take any portion of a vested property right from one person and invest another with it and be justified in so doing in view of the provisions of sections 13 and 14 of article 1 of the State Constitution and the Fourteenth Amendment to the Constitution of the United States.”

But again the court added the qualification: “We aré by no means intending to say that riparian rights may not under proper circumstances yield to the police power in the interest of public health, safety, comfort, or welfare, but the Act of June 16,1913, does not purport to be an exercise of such power for any purpose nor do the facts in the present case give rise to a situation where the police power may operate.” 202 Cal. at page 67, 68, 259 P. at page 449.

Justice Shenk concurred in the decision, on the ground that the waters of the river had already been applied to a, beneficial use by defendant and others before the application of plaintiff’s predecessor in interest, but dissented from the court’s assumption that the Water Commission Act of 1913 had not, as an exercise of the police power, effected a modification of riparian rights.

Finally, in Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 22 P.(2d) 5 (1933), the plaintiffs, riparian owners, sought to prevent defendants from impounding and diverting, under their claimed right of appropriation, water from the water shed of the Santa Ynez river above plaintiff’s lands. The decision of the lower court denying the relief prayed, was affirmed primarily on the ground that the defendants disclaimed any intention of impounding the ordinary flow of the river, but limited themselves and were also limited by the decree to the right of impounding storm waters in excess of the ordinary and usual flow. Plaintiff, however, also urged that as against a non-riparian appropriator, a riparian owner was entitled to insist upon the undiminished flow of the stream, no matter how slight both the benefit of such flow and the damage of the threatened diversion might be. The court, conceding that this was a fair statement of the effect of the previous California decisions, held that this rule had been modified by a constitutional amendment,³ adopted in 1928, after the Herminghaus and Fall River Cases, and that, in consequence, the rule of reasonable use now applied as between riparian owner and nonriparian appropriator. To the contention that the amendment SO' interpreted was a violation of the state and federal constitutional guaranties against deprivation of property without compensation, the court answered :

“It was because this court felt impelled to adhere to the long-established rule of Lux v. Haggin [69 Cal. 255, 4 P. 919, 10 P. 674], that a constitutional amendment was made necessary. * * • *

“There is a well recognized and established distinction between a ‘taking’ or ‘damaging’ for public use and the regulation of the use and enjoyment of a property right for the public benefit. The former falls within the realm'of eminent domain, and the latter within the sphere of the police power. That the constitutional amendment now under consideration is a legitimate exercise of the police power of the state cannot be questioned. It is the highest and most solemn expression of the people of the state in behalf of the general welfare. The present and future well-being and prosperity of the.state depend upon the conservation of its life-giving waters. * *• *

“ The cohservation of other natural resources are of importance, but the conservation of the waters of the state is of transcendent importance. Its waters are the very life blood of its existence. The police power is an attribute of sovereignty and is founded on the duty of the state to protect its citizens and provide for the safety, good order, and well-being of society. It is coextensive with the right of self-preservation in the individual. * * *

“In its inception the police power was closely concerned with the preservation of the public peace, safety, morals, and health, without specific regard to the general welfare. Under modern conditions it includes the general welfare which embraces regulations ‘to promote the economic welfare, public' convenience, and general prosperity of the community.’ Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175. •* * *

“As already observed the amendment purports only to regulate the use and enjoyment of a property right for the public benefit, for which reason the vested right theory cannot stand in the way of the operation of the amendment as a police measure. A vested right cannot be asserted against it because of conditions once obtaining. * * *

“There is nothing novel about the limitation of the riparian right to a reasonable, beneficial use of water. Other western states which first adopted the common-law doctrine of riparian rights have effectually changed it to meet modem conditions. * * *

“Oregon in 1909 cheeked the extension of the old common-law doctrine of • riparian rights, recognizing, however, certain rights secured prior to 1877. Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083, 102 P. 728. Thereafter the Legislature adopted a water code 'limitipg the riparian owner to a reasonable beneficial use. The code was upheld. In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475. Its constitutionality was again affirmed in Re Water Rights of Hood River, 114 Or. 112, 227 P. 1065.” 217 Cal. at 700-704, 22 P. (2d) at 16,17.

It has long been generally recognized that the establishment of an administrative system for the-regulation and determination of water rights, such as that adopted by Oregon Water Code of 1909, is a legitimate exercise of the police power of the state. 2 Wiel, Water Rights in Western States (3d Ed. 1911) § 1184, p. 1097; Freund, Police Power (1904) §§ 414-417. The intensity of the public interest involved is indicated by the provisions in the constitutions and statutes of western states declaring the waters of natural streams and lakes to- be the property of the public or of the state. Colo. Const. art. 16, § 5; Wyo. Const. art. 8, § 1; Utah Rev. St. 1933,100-1-1, Nev. Comp. Laws 1929, § 7890; Neb. Comp. St. 1929. § 46-502; Or. Code 1930, § 47-401. See Lasky, From Prior Appropriation to Economic Distribution of Water by the State —Via Irrigation Administration (1929) 1 Rocky Mt. L. Rev. 161, 174-187. The Oregon Water Code of 1909 itself purported to bo an exercise of the police power of the state as showm by section 74 (Laws Or. 1909, p. 343):

“Emergency. — Whereas, there is great uncertainty existing throughout the State with reference to the water rights of various parties along the streams, ditches and waterways as to- their several interests therein, entailing expensive litigation and engendering many animosities and much bad blood, thereby endangering the public peace and safety of many sections of the State, and Whereas, it is urgent that these conditions be remedied for the preservation of the public peace, health and safety of the State, this act shall be in full force and effect from and after its approval by the Governor.”

For a similar emphasis upon the peace of the community as one of the purposes to be achieved by water regulation, see White v. Farmers’ High Line Canal & Reservoir Co., 22 Colo. 191, 197, 43 P. 1028, 1030, 31 L. R. A. 828 (1896).

The question is whether or not the modification of riparian rights effected by the statute of 1909, as construed by the court in the Hood River Case, could reasonably be regarded as essential to the accomplishment of the ends sought to lie achieved by such legislation. That those ends may properly include the economic welfare of the community, as well as its peace, health, and safety is, of course, well established. Home Building & Loan Ass'n, v. Blaisdell, 290 U. S. 398, 436, 437, 54 8. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481 (1934). It cannot be doubted that the economic welfare of the people of Oregon was one of the principal aims sought to be promoted by the Water Code of 1909. Some of the most fully developed parts of the state, notably the Hood River Valley east of the Cascade Mountains, the Rogue River Valley, and the valley of the Umpqua river are said to owe their development as fruit raising districts entirely to irrigation. See page 58 of Brief on Merits filed by the Attorney General of Oregon in the Supreme Court in Columbia-Doschutes Power Co. v. Strip,klin, supra. Wo have the emphatic word of the majority of the Oregon court that modification of riparian rights was necessary to the effectuation of that purpose and that the preservation of such a right as plaintiff is claiming would “take the heart out of the Water Code.” This judgment of the state court, familiar as it is with the local conditions that called forth this legislation, is in itself entitled to great respect as evidence of the reasonableness and necessity of such interference with private rights. See Welch v. Swasey, 214 U. S. 91, 105, 106, 29 S. Ct. 567, 53 L. Ed. 923 (1909); Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 365, 30 S. Ct. 301, 54 L. Ed. 515 (1910). It also serves to distinguish the present case from cases hereinabove cited, in which the state court either construed the statute as inapplicable to riparian rights theretofore acquired, or held it unconstitutional as so applied. In those states, the need for a complete change in the water law may have been deemed less exigent.

Under the common law, the right of the riparian owner is to the usufruct of the water and not to the water itself. Legislation limiting the right to its use is in itself no more objectionable than legislation forbidding tbe use of real property for certain purposes. Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016 (1926); Gorieb v. Pox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A. L. R. 1210 (1927). See, too, Marblehead Land Co. v. City of Los Angeles, 47 F.(2d) 528 (C. C. A. 9, 1931). To argue, as plaintiff does, .that riparian rights are real property rights which attach to the land, does not put such rights beyond the reach of the police power. Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67, 35 S. Ct. 678, 59 L. Ed. 1204 (1915). See Block v. Hirsch, 256 U. S. 135, 155, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165 (1921). This is not a ease where a right of action had accrued on the basis of the previous law before it was superseded by the legislation under attack. Cf. Ettor v. Tacoma, 228 U. S. 148, 33 S. Ct. 428, 57 L. Ed. 773 (1913); Forbes Pioneer Boat Line v. Board of Comm’rs, 258 U. S. 338, 42 S. Ct. 325, 66 L. Ed. 647 (1922). That the common-law rights to the relative use of certain natural resources may be modified in the interest of securing fairer distribution thereof as well as of preventing physical or economic waste is established by Champlin Refining Co. v. Corp. Commission of Okla., 286 U. S. 210, and eases cited therein at page 234, 52 S. Ct. 559, 76 L. Ed. 1062, 86 A. L. R. 403 (1932). See, too, F. C. Henderson, Inc., v. R. R. Comm. of Tex., 56 F.(2d) 218 (D. C. W. D. Tex. 1932).

In Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 S. Ct. 529, 531, 52 L. Ed. 828, 14 Ann. Cas. 560 (1908), the right of a state, in the exercise of its police power, to modify existing riparian rights has been even more explicitly established. The Attorney General of the State of New Jersey filed an information in the state court to enjoin the defendant from carrying waters of the Passaic river out of the state, contrary to a prohibitory statute. Defendant contended that the statute violated its right as a riparian owner to divert whatever water it desired from the stream in as much as there were no objecting riparian interests below. The New Jersey court sustained an injunction on the ground that the common law recognized no such riparian right and that the state of New Jersey itself had a proprietary interest in the stream giving it the right to object to the diversion. McCarter v. Hudson County Water Co., 70 N. J. Eq. 695, 65 A. 489, 14 L. R. A. (N. S.) 197, 118 Am. St. Rep. 754, 10 Ann. Gas. 116. Expressly disclaiming any intention of casting doubt upon the ground of the state court’s decision, the Supreme Court stated that it preferred to rest its affirmance upon the broader ground of the police power of the state. Mr. Justice Holmes said:

“All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. The limits set to property by other public interests present themselves as a.branch of what is called the police power of the state. The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side. For instance, the police power may limit the height of buildings in a city, without compensation. To that extent it cuts down what otherwise would be the rights of property! But if it should attempt to limit the height so far as to make an ordinary building lot wholly useless, the rights of property would prevail over the other public interest, and the police power would fail. To set such a limit would need compensation and the power of eminent domain.

“* * * But it is recognized that the state, as quasi-sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately concerned. * * *

“The problems of irrigation have no place here. Leaving them on one side, it appears to us that few public interests are more obvious, indisputable, and independent of particular theory than the interest of the public of a state to maintain the rivers that are wholly within it substantially undiminished, except by such .drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent1 wherever there is a state, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots. Whether it be said that such an interest justifies the cutting down by statute, without compensation, in the exercise of the police power, of what otherwise would be private rights of property, or that, apart from statute, those rights do not go to the height of what the -defendant seeks to do, the result is the same.”

' The modification of riparian fights which the act of 1909 has effectuated is not so drastic a change as to amount to taking of property without due process of law. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321 (1922). At common law, the usufruct of the riparian owner was not absolute; it was conditioned on the equal right of every other riparian owner to the use of the water. By the Oregon legislation, his usufructuary privileges were not destroyed; his right of access to and to the equal use of the waters for ordinary. domestic purposes were preserved. Re Water Rights of Hood River, 114 Or. at 190, 227 P. at 1089. This legislation, however, has changed the conditions under which, the riparian owner’s privilege otherwise to use the water may be exercised. On the one hand, his unrestricted right reasonably to use his fair share of the waters for beneficial purposes is now subordinated to a prior appropriation for beneficial purposes. On the other hand, he is no longer limited in such beneficial use to his fair proportion of the waters over and above those needed for domestic purposes by all riparian owners; and as a riparian owner, he is in a peculiarly advantageous position to exercise the right of appropriation. The statute cannot be said to take away property from one in order to give it to another, even though the effect of the operation of the statute in a specific case may be so to transfer the privilege of making some specific use of the water.

We conclude, then, that the riparian owner’s right to the natural flow of the stream substantially undiminished has been validly abrogated by the Water Code of 1909 as construed by the Oregon court. Plaintiff’s assertion of such a right in this case cannot, therefore, be sustained.

5. The record does not justify us in differing with the district judge who deemed that the injunction as granted would suffice to preserve plaintiff’s access to the water and its enjoyment of “the residual rights guaranteed by the modified riparian right doctrine.” Plaintiff asserts that the chief value of its lands, due to their location, lies in their availability for power purposes, and that they cannot be so utilized if defendant be permitted to consummate its alleged wrongful acts. Any loss of this value would, however, be damnum absque injuria; it would be due to defendants’ forehandedness in obtaining the certificates and permits that give them priority in putting the waters of the river to a beneficial use.

It is not clearly apparent whether plaintiff claims that removal of the rock blasted and to be blasted either of itself or combined with the maximum operation of the plant will cause such a diversion as substantially and permanently to move the thread of the stream toward defendant’s land or will cause only an intermittent change dependent upon defendant’s actual operations of its proposed plant and the stage of the river. In either ease, however, plaintiff has no legal cause for complaint or for further injunctive relief, even though, if such change were permanent, it would alter the relation of plaintiff’s western boundary line to the thread of the river. While with a gradual change, the thread of the river continues to be the boundary line between opposite riparian owners, with a sudden and apparently permanent change, the boundary remains as theretofore, that is, at the line of the thread of the former main channel and not at the thread of the new channel. Wyckoff v. Mayfield, 130 Or. 687, 280 P. 340 (1929). The riparian owner has no legal right in Oregon to the continuance of the thread of the stream as his boundary.

Defendants’ proposed diversion of the water, pursuant to the certificates and permits of appropriation for beneficial purposes and the blasting on and removal of the rock from their own part of the river bed in the accomplishment of this purpose, will violate none of plaintiff’s rights, provided defendants maintain the water level prescribed in the injunction as granted. If plaintiff’s fears that defendants, in the operation of the power plant, will violate the injunction to its damage, should be realized, the remedy that will give plaintiff full protection is readily available. Such fears justify neither a reversal nor a modification of the decree.

Decree affirmed.

1 Cf. In re Water Rights of Deschutes River and Tributaries, 134 Or. 623, 685, 703, 286 P. 563, 585, 294 P. 1049, 1051 (1930), appeal dismissed (as taken too late); Columbia-Deschutes Power Co. v. Stricklin, State Engineer, 200 U. S. 590, 54 S. Ct. 83, 78 L. Ed. 520 (1933). The valuable briefs filed therein in the Supreme Court of the United States have been examined. The appellant urged among other contentions, the constitutional objections presented by plaintiff herein.

2 For valuable discussions of present problems of California water law, see Bingham, Some Suggestions Concerning the California Law of Riparian Rights (1934) 22 Cal. L. Rev. 251, and Comment (1934) 22 Cal. L. Rev. 333. For earlier discussions, see Wiel, Pending Water Amendment to California Constitution and Possible Legislation (1928) 16 Cal. L. Rev. 170, 257; Treadwell, Modernizing the Water Law (1928) 17 Cal L. Rev. 1.

3 Cal. Const. art. 14, § 3: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are' capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the- conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreason-' able use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream' or water course attach to, hut to no more thán so much of'the flow thereof as may be required or used consistently wit(i this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self-executing, and the 'Legislatare may also' enact laws in the furtherance of the policy in this section contained.”