Re Determination of Water Rights of Hood River.

227 P. 1065, 114 Or. 112, 1924 Ore. LEXIS 3

• Court: Oregon Supreme Court
• Decided: July 6, 1923
• Status: Published

Opinions

BEAN, J.

— We will consider first the rights of the East Fork Irrigation District, which involves the condition of its predecessor, the East Fork Irrigation Company appropriation and the system of irrigation. The rights of the company, the District’s predecessor, were initiated under the legislative enactment of 1891, Section 6525 et seq., L. O. L. Several sections of the act of 1891 were amended and several repealed in 1913: Gen. Laws 1913, p. 138. The later enactment of 1909, known as the Water Code, preserves existing rights under former laws and provides that such rights shall he adjudicated under the law of 1909: Or. L., § 5715 et seq.

The act of 1891 provided, in so far as deemed necessary to note here, as follows (Section 6525, L. O. L.):

“The use of the water and the running streams of the State of Oregon, for general rental, sale or distribution, for purposes of irrigation, and supplying water for household and domestic consummation, and watering livestock upon dry land of the state, is a public use, * * ”

Section 6526, L. O. L., authorizes a corporation organized for the construction and maintenance of a ditch, or canal or flume for general irrigation purposes and other purposes, to appropriate and divert water from its natural bed or channel, and to store the same when not needed for immediate use. Section 6528, L. O. L., provided for the posting of a notice, giving the name, general course, size, width and depth of the ditch or canal; the proposed point of construction of the headgate, the name of the owner and the number of cubic inches of water by miner’s measurement under a six-inch pressure intended to be appropriated. Section 6529, L. O. L., directs a similar notice to be filed with the county clerk. Section 6533, L. O. L., requires that within six months from the date of the posting of the notice, the corporation shall commence the actual construction of its proposed ditch or canal or flume

“and shall prosecute the same without intermission (except as resulting from the act of God, the elements, or unavoidable casualty), until the same be completed; and the actual capacity of said ditch or canal or flume, when completed, shall determine the extent of the appropriation, anything contained in the notice to the contrary notwithstanding. Upon a compliance with the provisions of this act, the right to the use of the water appropriated shall relate back to the date of posting said notice.”

Section 6534 respects and upholds all then existing appropriations to the extent of the amount of water actually appropriated, and enacts that all controversies respecting rights of water under the provisions of this act shall be determined by the date of the appropriations, as respectively made thereunder by the parties. Section 6535 declares that in case of a change in the channel of a stream the head of the ditch may be extended a distance upon the stream so as to secure a sufficient flow of water. Section 6538 provides that natural depressions in the earth may be utilized to all intents and purposes as parts of the ditch. Section 6546, which is still in force, enacts that the right of the appropriator may be lost by abandonment for a period of one year; but the question shall be tried and determined as other questions of fact.

Some provisions of the act of 1909 are as follows: Section 5715, Or. L., reads, “All water within the state from all sources of water supply belong to the public. ’ ’

Section 5716, Or. L., declares:

“That 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 or corporation or association,”

provided that the act does not apply to certain enumerated streams.

Section 5717, Or. L. (amended by Laws of 1923, p. 439), declares, in effect, that nothing in this act contained shall impair a vested right to the use of water. Subdivision 2 reads thus—

“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; provided, such use has not been abandoned for a continuous period of two years.”

Subdivision 3 provides that where any riparian proprietor at the date of the act is engaged in good faith in the construction of works for the application of water the right to take and use such water shall be deemed vested in such riparian proprietor, provided such works shall be completed and the water devoted to a beneficial use within a reasonable time after the passage of the act, and empowers the State Engineer to determine the time for such application to a beneficial use. “The right to water shall be limited to the quantity actually applied to a beneficial use within the time so fixed by the State Engineer.” Subdivision 6 directs that in prescribing the time within which the full amount of water appropriated shall be applied to a beneficial use, the State Engineer shall grant a reasonable time after the construction of the works or canal or ditch, used for the diversion of the water, and in doing so shall take into consideration the cost of the appropriation and application of such water to a beneficial purpose, the good faith of the appropriator, the market for water or power to be supplied, the present demands therefor, and the income or use that may be required to provide fair and reasonable returns upon the investment. For good cause shown the State Engineer may extend such time.

Subdivisions 7 and 8 read thus — ■

“(7) And where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder has been in good faith commenced and diligently prosecuted, such appropriations shall not be set aside or avoided, in proceedings under this act, because of any irregularity or insufficiency of the notice by law, or in the manner of posting, recording, or publication thereof.

“(8) All rights granted or declared by this act shall be adjudicated and determined in the manner and by the tribunals as provided in this act. This act shall not be held to bestow upon any person, association or corporation, any riparian rights where no such rights existed prior to the time this act takes effect.”

There can be no question but that the company, the District’s predecessor, obtained the right of appropriation of the waters of the East Fork of Hood Eiver by posting and filing its notice of appropriation and otherwise complying with the law. The question is, what is the extent of the appropriation? The statute requires that the work of construction of such canal shall be commenced within six months from the date of the posting of the prescribed notice. The uncontroverted testimony shows a bona fide compliance with the law in this respect. The statute does not specify any certain amount of work to be performed during the first six months. The fact that the first headgate was washed out and its location changed is a contingency contemplated by the act of 1891. No intervening rights having been affected, this does not impair the right of the appropriator. The same water was utilized at the new intake as was proposed to be used at the former: Section 6535, L. O. L.

In Long on Irrigation, Section 41, we read:

“The appropriator must exercise that degree of diligence which will indicate the constancy and steadiness of purpose and labor usual with men engaged in like enterprises, who desire a speedy accomplishment of their designs, and will manifest to the world a bona fide intention to complete the work without unnecessary delay.”

Counsel for the Lumber Company contend that the appropriation made by the District’s predecessor was made by < a public service corporation under the statute of 1891, and that the doctrine of relation does not apply as claimed by the District.

Where an act provides for the posting of a notice of appropriation, and the appropriation is finally consummated with reasonable diligence, the date of priority, by the doctrine of relation, is fixed as of the date of posting the notice: Section 6533, L. O. L.; 2 Kinney on Irrigation, §§732, 778. Reasonable diligence is the test, both in the construction of the necessary system of works and in the application of the water to a beneficial purpose. In those states which require no notice of appropriation the date of the actual commencement of the work fixes the priority of appropriation. The maxim, “first in time, first in right,” is the rule for the determination of not only the right to the use of the water but also tbe extent of sucb right: 2 Kinney-on Irrigation, § 779. Tbe appropriation of water by a corporation follows tbe same general rule of tbe arid region doctrine as to tbe priority of right, as though tbe appropriation was made by individuals: 3 Kinney on Irrigation, § 1470. In tbe prosecution of tbe construction of a system of works necessary for tbe diversion and application of water, in an attempted appropriation of tbe same, tbe diligence required by tbe law does not involve unusual or extraordinary efforts. That which is usual and ordinary with men engaged in like enterprises who desire to speedily effect their designs is required. There must be sucb assiduity of work of construction of tbe system as will manifest to tbe world a bona fide intention to complete it within a reasonable time. Tbe question is one of fact and must be determined from tbe circumstances surrounding each case: 2 Kinney, § 735; Moss v. Rose, 27 Or. 598 (41 Pac. 666, 50 Am. St. Rep. 743); Hough v. Porter, 51 Or. 318 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728); Ison v. Sturgill, 57 Or. 109 (109 Pac. 579, 110 Pac. - 535); Porter v. Pettengill, 57 Or. 247, 110 Pac. 393); Andrews v. Donnelly, 59 Or. 138, 116 Pac. 569); Longmire v. Smith, 26 Wash. 439 (67 Pac. 246, 58 L. R. A. 308); Hall v. Blackman, 8 Idaho, 272 (68 Pac. 19); -In re Willow Creek, 74 Or. 592, 144 Pac. 505, 146 Pac. 475); 1 Wiel on Water Rights, §§ 382, 394.

In tbe present case, as shown by tbe testimony, when.tbe Lumber Company made its appropriation in tbe spring of 1906, tbe Bast Pork Irrigation Company, pursuant to its notice of appropriation, was diligently prosecuting tbe work of constructing its ditch which was then completed for about six miles from tbe beadgate to Jake Lentz’s place, from where the laterals or branches were extended. The laterals or branches, and some rocky places in the ditch, were then in an incomplete state. The testimony indicates, and the record of the Irrigation Company shows, that the main ditch was completed somewhat over six miles from the headgate to “The Dalles road” prior to March 5, 1903.

The acts of the company indicated a bona fide intent to complete the same within a reasonable time. Each and every season labor and money had been continuously expended in furtherance of the enterprise. The Lumber Company and all others had constructive notice of the claim. There had been no abandonment nor sign of cessation in the work on the part of the company. It was an undertaking of considerable magnitude, one which under the conditions prevailing in that locality would necessarily take quite a long time. There were logs and brush and debris to be removed from the right of way, and the land was uneven with considerable fall in the grade, necessitating the construction of flumes and the laying of a great amount of pipe, 8,000 feet of 16 inch, and 3,200 feet of lá-inch pipe, much of which was necessarily high-pressure pipe, and considerable of smaller size. But little if any work could be done during the winter season. The most of the land to be served with water had to be cleared of timber before it could be cultivated and irrigated, making the demand for water increase slowly. The use of the water, however, was enlarged steadily. The present statute of our state recognizes the demand for water as a question for consideration in such case. The conditions differ from those which prevail where irrigation works have been constructed in eastern Oregon, principally upon sagebrush prairies. "We think this feature of the case should have an important bearing upon the question of time for the construction of the system: 2 Kinney, § 736, and cases there cited.

Under this state of facts the law pronounces that the appropiiator has used “reasonable diligence” and that the additional application of water annually to meet the augmented demand causes the appropriation to relate back to its inception, as to the capacity of the ditch of the District constructed before the fall of 1914, thereby cutting off all intervening rights of adverse claimants to the use of the water. It would be vain and useless to require an appropriator to construct works necessary to make the entire appropriation of water for all the land intended to be irrigated at the inception of the project when it is not in readiness to receive the same and there is no immediate purpose for which the water can be used. The law does not require impossibilities nor compel settlers to cultivate all their land within a short time, or be deprived of the benefit of a large portion of the water right which has been properly initiated for the purpose of irrigating their irrigable lands: 2 Kinney on Irrigation, § 740.

Considerable space in the record and briefs is devoted to the classification of the East Fork Irrigation Company, defendant’s predecessor. This question is not deemed controlling and will be noticed only in a general way. During the first years of the existence of the East Fork Irrigation Company the stockholders were principally farmers. Afterwards, not having the means to carry through the project, they transferred a majority of the shares of stock to Mr. Bone. Still later the system was conveyed to the Irrigation District, the corporation remaining intact. Each organization was properly utilized as a means for the same end, namely — the reclamation and irrigation of the lands covered by the system. In Seaward v. Pacific Livestock Co., supra, cited and relied upon by the Lumber Co., five years elapsed during which no work was done to increase the appropriation claimed and the application of the water to the land. No such condition is shown to exist in the case of the District. . The evidence shows that the appropriator did some work each and every year to the extent of its ability.

The policy of the State of Oregon in regard to the use of the waters of the state is further expressed in the Water Code enacted in 1909: See § 5715 et seq., Or. L. That act commands that all existing water rights shall be adjudicated as provided for in the act. It directs the Water Board (now State Engineer) where actual construction work has been commenced prior thereto, to prescribe the time within which the full amount of water appropriated shall be applied to a beneficial use; and in deciding such question the cost of the appropriation, the application of such water to a beneficial purpose, the good faith of the appropriator, the market for water or power to be supplied, the present demands therefor, and the income or use that may be required to provide fair and reasonable returns upon the investment is to be taken into consideration. The same provision is contained in the Act of 1909, Chap. 216, L. O. L., § 6595. Section 6668, L. O. L., and Section 5764, Or. L. declare “all water used in this state for irrigation purposes shall remain appurtenant to the land upon which it is used * * ” and makes provision for a change of rights upon proper appli cation: Section 6669. Section 6765 declares the willful waste of water to the detriment of another shall be a misdemeanor.

Between 1897 and 1905 they diligently kept constructing the ditch to practically its full size. In some rocky places it was left narrower. Water was put through the first six miles, or main canal, and on through the pass, through the “Joss Divide,” and on beyond what is called the middle lateral and a little water was delivered in Willow Flat in the summer of 1901. In 1902 the ditch was practically completed to The Dalles road. In 1903 they went back and widened the main ditch in the rocky places and straightened it. In 1909 they made a pipe-line extension of the ditch to the Dethman Ridge. During the early part of the construction of the ditch contracts were awarded to the stockholders and the ditch was excavated in disconnected sections, and it was not of the same width in all places. Afterward the sides were evened up and the ditch was made of a uniform width, as stated “by cleaning out a narrow place” and making it “uniform in width, grade and bank” along the upper six miles. It is in evidence that most of the so-called enlargements of the ditch were below the main canal and that they were in reality an extension of the laterals. The evidence shows that the first half-mile of the ditch which is above a certain toll road has not been changed or enlarged.

Mr. R. A. McClanathan, a civil engineer, testifies to the effect (Trans. Ev., Vol. 1, p. 241) that he commenced work for the Irrigation District about the 1st of September, 1914, and cross-sectioned the old ditch where it had not been enlarged that year and found that its size varied at places from 8y2 feet on the bottom and 12 feet on the top, to 15 feet on the bottom and 18 feet on the top; that the upper end of the ditch, which was on a much steeper grade, was not enlarged, would carry as much water as the ditch below after it was enlarged, and that there were not over two or three places where it was of the minimum size mentioned. The measurements vary with the grade of the ditch. The engineer describes the main ditch as being from the headgate down to the falls on the Long place, and from there the ditches are designated as laterals.

It appears from where the ditch was extended for the service of what is called the “Lower Valley” it is separated into three laterals. In 1907 the East Fork Irrigation District was organized and the system was transferred to the District for about $110,000, which amount was afterward augmented until the indebtedness of the District for its water system was about $244,337.37. The District has bonds outstanding to the amount of $225,000. The rights of an appropriator, like the East Fork Irrigation District and its predecessors, initiated under the act of 1891, are protected and confirmed by all of the later statutes.

The doctrine of relation, by which the priority date of an appropriation relates back to the date of the diversion of water from the stream, or to the date of posting notice of the contemplated diversion when reasonable diligence is thereafter exercised in actually diverting the water and applying the same to the irrigation of lands in accordance with a plan in actual existence at such date, has been established and applied in Oregon: Simmons v. Winters, 21 Or. 35 (27 Pac. 7, 28 Am. St. Rep. 727); Cole v. Logan, 24 Or. 304 (33 Pac. 568); Wimer v. Simmons, 27 Or. 1 (39 Pac. 6, 50 Am. St. Rep. 685); Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472, 60 Am. St. Rep. 777); Hough v. Porter, 51 Or. 318, 430 (98 Pac. 1083, 1106, 102 Pac. 728); Nevada Ditch Co. v. Canyon Ditch Co., 58 Or. 517 (114 Pac. 86); Smith v. Neal, 31 Or. 105, 109 (49 Pac. 850); Whited v. Cavin, 55 Or. 98, 104 (105 Pac. 396); Oviatt v. Big Four M. Co., 39 Or. 118 (65 Pac. 811). Such rule is universally applied throughout all the western arid states: Amalgamated Sugar Co. v. Hempe et al., 226 Fed. 1012; Opir Silver M. Co. v. Carpenter (Nev.), 97 Am. Dec. 550; Barnes v. Sabron, 10 Nev. 217, 244; Sowards v. Meagher, 37 Utah, 212 (108 Pac. 1112); Sand Point W. & L. Co. v. Panhandle Co., 11 Idaho, 405 (83 Pac. 347). Reasonable diligence is exercised in the diversion of the water, if such diversion keeps pace with the additional area of land brought under cultivation, and the latter in turn be done with reasonable diligence: Seaweard v. Pacific L. S. Co., 49 Or. 157 (88 Pac. 963-965); Wiel, Water Rights (3 ed.), §§ 382-385, 483-485; Kinney on Irrigation (2 ed.), Chap. 39, §§ 734, 736, 738, 740, 741. It will avail nothing to an appropriator to divert a greater quantity of water than is presently required, even though he has a definite plan to use the excess in the future: Hindman v. Rizor, 21 Or. 112 (27 Pac. 13, 15); Low v. Rizor, 25 Or. 551 (37 Pac. 82, 84). An appropriation may be made by one person for the future use of another; and for future use upon lands which the appropriator does not then own, or which he does not contemplate owning, and which he never does own.

It is sufficient to make the appropriation valid, if the original intention contemplate that the water filed upon is for use upon certain lands then definitely had in mind, and it be reasonably anticipated that when the diversion is ultimately completed and the water ready for application to that land, or other land or uses which have been substituted for the originally- considered and intended land, such land will be then, or with reasonable diligence thereafter, ready to receive it: Nevada Ditch Co. v. Bennett, supra. It is a significant fact that what was intended by the promoters and movers of the Irrigation Company in the inception of the undertaking has been actually accomplished as conceived and planned. The land is now watered and it is the same land and watered from the same source the promoters had in mind. Owing to the topography of the country being mountainous the water had to be conducted from the bank of a mountain stream to a point 20 miles away, passing through and crossing over ravines and canyons, falling over a precipice at one place and many flumes, pipes and syphons were necessary. It was a stupendous task. The construction of the system kept pace with the requirements for water by the settlers. In order to prepare their land for cultivation and setting out fruit trees they were obliged to clear the land and grub out the stumps, as the most of the land. was covered with a heavy growth of brush and timber. To clear and prepare for cultivation an acre of such land would entail many times the amount of labor and expense that would be required to cultivate and prepare to irrigate an acre of ordinary prairie land. Hood River Valley is situate between mountains. It is the great apple and fruit orchard country of the state.

■ The area the District planned to have covered was over 13,000 acres. The cost of the District above mentioned does not include all the cost of construe tion before tbe District acquired the system. Much work was done by the farmer stockholders, a record of which was not preserved. In the case of Eldredge v. Hill Ditch Co., 90 Or. 590, 596 (177 Pac. 939), which involved a corporation organized under the general corporation laws, it appeared that it was not formed or operated for profit and that it did not sell water but merely carried it. The language of Mr. Justice Bennett, in the opinion of that case, is in part as follows:

“It seems to be pretty well settled in the states having water codes similar to that of our own state, even in cases of public service corporations organized for profit and selling water to the general public, that the water and ditch rights really belong to the individual appropriator and are appurtenant to the lands upon which the same are used, and that the corporation transmitting the same is in the nature of a holding company or agent for the true owners of the water rights.”

See De Pauw Univ. v. Oregon Public Ser. Com., 253 Fed. 848; citing Del Mar Co. v. Eshelman, 167 Cal. 666 (140 Pac. 593, 948); Thayer v. California Dev. Co., 164 Cal. 117 (128 Pac. 21). See, also, Oregon Const. Co. v. Allen Ditch Co., 41 Or. 209 (69 Pac. 455, 457, 458, 93 Am. St. Rep. 701); Caviness v. La Grande Irr. Co., 60 Or. 410, 425 (119 Pac. 731). The doctrine of relation was fully recognized by the decision of the case of Simmons v. Winter, 21 Or. 35, at page 42 (27 Pac. 7, 28 Am. St. Rep. 727). Mr. Justice Lord, in writing the opinion, states thus:

“If the amount of water appropriated is within the given, beneficial purpose for which it was taken— cno more than is necessary to irrigate the lands contemplated to be reduced to cultivation as soon as can be reasonably done — although more than can be bene ficially used for the present, it is nevertheless a valid appropriation. * * ” The settler “is not required, in-order to make his appropriations valid, to beneficially use the first years of his settlement the full amount of water appropriated, when such amount is no more then is necessary to irrigate the lands he intends to subject to cultivation. His original appropriation may be made with reference to the amount of water that is needed to irrigate the lands he designs to put into cultivation.”

See Cole v. Logan, 24 Or. 304, at p. 311 (33 Pac. 568), where Mr. Justice Moore said:

“The defendant, as a prior appropriator, did not find it necessary to divert or appropriate in 1871 all the water he ultimately intended to use in the irrigation of his lands. As he adds to the area of his cultivated land he may increase the quantity necessary to properly irrigate the whole tract, and any subsequent appropriator diverts the water subject to such prior claim. To entitle the defendant, however, to the benefit of such appropriation, he should within a reasonable time apply the water to such beneficial use. As fast as he can reasonably put his homestead into cultivation, he is entitled to divert and use the water for that purpose.”

In Low v. Rizor, 25 Or. 551 (37 Pac. 82), the syllabus reads as follows:

“A prior appropriator of water is entitled to a sufficient quantity to irrigate his land, and he may increase the appropriation to keep pace with the additional area brought under cultivation, if it is done with reasonable diligence. * * ”

In Wimer v. Simmons, 27 Or. 1, at page 6 (39 Pac. 6), we find:

“It is the policy of the law that water of a stream shall be appropriated to the extent only that it is put to or so designed for some useful or beneficial purpose. This is the measure of the appropriation. The entire appropriation may not he utilized at once for the purpose designed. In such case a reasonable time is allowable within which to make the application to such purposes, and the surroundings and circumstances of each particular case are elements for consideration in determining what is a reasonable time within which to complete and fix the extent of the appropriation.”

In Nevada Ditch Co. v. Bennett, supra, at page 98 we find the following language:

“Mallett, Adams and Lee contemplated a use, not only to be applied by themselves, but by such others as might come in under their ditch. They had in mind some persons with whom they had arranged to join them in the new settlement, should they find a suitable locality; and they expected others to come, as they did subsequently, some of whom they brought in themselves. Indeed, the very object of the scheme was to induce immigration and settlement which they expected to accomplish by diverting the water, and conducting it to such localities as would be convenient for use, with a purpose of developing the appropriation with the aid of such other settlers as would apply the use. They had a reasonable expectation that there would be a' demand for water as soon as they could convey it to a convenient place for the intended use, and in this respect the scheme could not be said to be merely speculative, impracticable or visionary.”

The latter case has often been cited and approved both in this state and elsewhere. In Hough v. Porter, 51 Or. 318, at page 430 (95 Pac. 732, 98 Pac. 1083), Mr. Commissioner King uses the following language:

“It is urged in respect to their (certain claimants’) rights that only a part of the lands were entered or in cultivation when the ditch was first dug, and that the rights of each of the parties interested in this ditch are limited to the time when the lands of each were acquired and the irrigation hereof commenced. Whatever may be the rule elsewhere, this question is set at rest in the very clear and able opinion by Mr. Justice Wolverton in Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472, 60 Am. St. Rep. 777), where this feature was prominent among the many points relied upon. It was held that a bona fide intention to devote the water to a useful purpose, which is required of an appropriator, may comprehend the use to be made by or through other persons and upon lands and possessions other than those of the appropriator.”

See also to the same effect Nevada Ditch Co. v. Canyon Co., supra; Smith v. Neal, supra.

The question of diligence is closely related to the rule of relation; the two must be considered together for the rule has its basis upon diligence. The reason for the rule grew out of the necessity arising through conflicting claims of settlers in the arid districts of the great west. Except for its application the doctrine of appropriation would have resolved itself into a scrambling rush for the possession of the water right, and the question would always be decided in favor of the one who either had the most money or the one who had the least to do to effect a diversion of water: Wiel on Water Rights (3 ed.), § 382 et seq.; Seweard v. Pacific Liv. Co., 49 Or. 157, 160, 161 (88 Pac. 963); Whited v. Cavin, 55 Or. 98, 109 (105 Pac. 396); Ison v. Sturgil, 57 Or. 109, 116, 117 (109 Pac. 579, 110 Pac. 535).

The notice of appropriation posted and filed by the predecessor of the District was intended by the statute, and by the promoters of the East Fork Irrigation System to apprise all subsequent appropriates of water from the East Fork of Hood River, of the amount of water appropriated and claimed by the Irrigation Company and of a general description of the land proposed to be irrigated. Such notice was available to the officers and agents of the Lumber Company when they commenced the construction of their plant and made the Lumber Company’s appropriation. It was constructive notice to them of such appropriation and to all persons. The managing officer of the Lumber Company states that he never saw the notice of the appropriation of the Irrigation Company, but that would not change the force of the record thereof made pursuant to statute. The Lumber Company would be presumed to take notice of the record of the notice of appropriation just the same as it would of the record of title to the land which it purchased for a mill site.

It is earnestly contended on behalf of the Lumber Company, in effect, that the appropriation of the East Pork Irrigation Company, under the act of 1891, could not be made and was not made for any particular lands.

It is plain that except for the land under the proposed ditch at the time of posting and filing the notice and making the appropriation, doubtless the appropriation would not have been made. The purpose of the irrigation law of 1891 seems to be to promote irrigation and to provide a manner for exercising organized effort in that direction. The statute, to quite an extent, is declaratory of the law as it formerly. existed, the rules theretofore obtaining were not abrogated. When an appropriation for a certain area was made under the act, the statute provides that upon the completion of the proposed system with reasonable diligence, and the application of the water to a beneficial purpose within a reason able time, according’ to tbe provisions of the law, tbe right to the use of the water shall relate back to the date of the posting of the notice: Section 6533, L. O. L.

In Re Waters of Umatilla River, 88 Or. 376 (168 Pac. 922, 172 Pac. 97), the claims were made under the act of 1891 and the intent of the promoters of the Hinkle Ditch Company, the predecessor in interest of the Western Land and Irrigation Company, the appellant, was taken into consideration and discussed in the opinion, in connection with the notice of appropriation in determining the extent of the appropriation. Syllabus No. 3 reads thus:

“The notice and map which Section 6525, L. 0. L., requires an appropriator of water for irrigation to file, mark the limit of the proposed enterprise; and activities beyond the scope thereof requires proceedings for a new appropriation.”

At page 393 we find the language of Mr. Justice McCamant as follows:

“Mr. Hinkle and Mr. O. D. Teel were the promoters of the Hinkle Ditch Company and were more familiar than anyone else with its plans at the time when its appropriation of water was made. Mr. Hinkle testifies” (here follows testimony as to what they proposed to do).

On pages 397 and 398 we read the following:

“It remains to apply the law arising on the above facts. In 2 Kinney on Irrigation and Water Eights (2 ed.), page 1221, it is said:

“ ‘In connection with the claim set forth in the notice, the court may also examine all the other facts in any particular case which tend to prove the actual intent of the appropriator. Such facts may be such as the purpose indicated in the notice, the actual amount of water required for such purpose, the acts of the appropriator in prosecuting the work necessary, the size of the ditch and its capacity, the method of diversion from the stream, the method of the application of the water, and any other facts which tend to show the true purpose of the appropriator.’ ”

Pomeroy on Riparian Rights (l ed.), Section 47, says:

“There must be-some such actual, positive, beneficial purpose, existing at the time, or contemplated in the future, as the object for which the water is to be utilized; otherwise no prior and exclusive right to the water can be acquired.”

In Power v. Switzer, 21 Mont. 523, 530 (55 Pac. 32), the Court says:

“ ‘The intention of the claimant is a most important factor in determining the validity of an appropriation of water. When that is ascertained, limitation of the quantity of water necessary to effectuate his intent can be applied according to the acts, diligence and needs of the appropriator.’ ”

“The formation of a new intention to irrigate lands the irrigation of which was not at first contemplated marks the beginning of a new appropriation.”

In Andrews v. Donnely, 59 Or. 138, 147, 148 (116 Pac. 569), Mr. Justice Burnett says:

“The right of a prior appropriator is paramount, but the right is limited to such an amount of water as is reasonably necessary for such useful purpose and project as may be fairly within contemplation at the time the appropriation is made.”

In the present case both the notice of appropriation of the East Pork Irrigation Company, the predecessor in interest of the Irrigation District, and the testimony in the case, show that it was the original intention of the Company and its promoters, and the farmers and land owners interested in the project, to appropriate water for, and to irrigate all the land for which water is claimed by the District. To this end they have diligently and continuously prosecuted the work of construction of the system and the application of the water to the irrigation of the land.

Two Circuit Court judges and the Water Board have passed upon the facts in relation to the appropriation of the Irrigation District and their findings of fact are entitled to great weight. The State Engineer made extended surveys of the lands and measurements of the waters in the various streams and ditches involved in this proceeding. The Water Board was in much better position after an examination of the premises to determine the questions of fact than this Court is from a mere reading of the record.

After mature deliberation we hold that the appropriation and use of the water made by the predecessors in interest of the East Fork Irrigation District, and the construction of the canal and system up to the year 1914, come within the general rule above referred to.

The enlargement of the ditch in 1914, sometimes referred to as the increase after 1913, raises a different question. R. A. McClanathan, a civil engineer, who testified as a witness for the District, November 21, 1914, to the effect that he had been employed by the District since September of that year; said that he prepared for the District plans for an enlargement of the canal and system and had charge of the work; that he examined the canal September, 1914, and cross-sectioned it; that the plans for the enlargement of the canal and the construction of the new head works were contemplated to be completed by the spring of 1915. It was, however, enlarged about one-half a mile from the intake, cleaning out of the other one-half mile and cribbing the ditch so as to strengthen the banks, and moving stumps and rocks, according to the plan. The District contemplated the expenditure of $20,000 in the enlargement of the ditch and cleaning the same out and improving the system. The enlargement would necessitate an increase in the size of the laterals, particularly the west lateral.

We find from the records of the United States Geological Survey, which is in evidence, that the flow of water in the canal in the season of 1915 was increased over the flow therein in the season of 1914, before the enlargement to the amount of twenty-two second-feet, or approximately 880 miner’s inches under a six-inch pressure.

From the record we think that the enlargement mentioned constituted a new appropriation to the extent of twenty-two second-feet of water, and that the award to the East Fork Irrigation District should be modified so that the sarnie will be for 120 second-feet of water, with a date of relative priority of November 25, 1895, and for twenty-two second-feet or approximately 880 miner’s inches of water with a date of relative priority of May 1, 1915.

Oregon Lumber Company.

A short distance below the junction of the East and Middle Forks of Hood River is the power plant and sawmill of the Oregon Lumber Company.

The main question as to the appropriation of the Oregon Lumber Company is as to the amount of water necessary to operate its plant. J. L. Stan nard, an hydraulic engineer, a witness for the Lumber Company, testified to the purport that after examining the plant'in a general way; in his judgment 368 second-feet of water is necessary for the proper operation of the plant. At the hearing before the Water Board Mr. Stannard further testified that in May, 1919, he made four tests of the power plant to determine the amount of water required; the. tests ranging from 20 actual horse-power to 540 actual horse-power which was not a full load for the machine. After detailing the tests he concluded therefrom that 850 theoretical horse-power would require 420 second-feet.

Under the direction of the former State Engineer, V. H. Reineking, an engineer of wide experience in the construction of power plants, on September 1, 1917, made and reported four tests of the Oregon Lumber Company’s water, which are as follows:

Test on Hydraulic Turbines, Oregon Lumber Company, Dee, Oregon.

Computed Computed Turbine . Generator Turbine Output Test Output Output Horse No. K.V.A. K. W. Power TheoretiHead Discharge cal Feet See. feet I-I. P. Efficiency

1. 121.8 107 143.5 30.32 180 620 21.3%

2. 487.3 427 573 30.17 328.5 1125 50.9%

3. 368.2 323 433 30.11 300 1025 42.2%

4. 437.6 384 515 29.98 322.5 1098 46.8%

It is seen from the above data that the effective head is slightly over 30 feet in three of the four tests. The last three tests were made when the full load of both the sawmill and planing mill was carried by the generator. In August, 1917, measurements were made to determine the quantity of water seeping through the dam, which, with the water level back of the dam at its maximum elevation, was found to be 114.3 second-feet with 3.70 feet flowing through the fish-ladder. With the water surface drawn to 3.24 feet below the crest of the dam, the seepage water measured 93 second-feet, with no water flowing through the fish-ladder.

It appears from the State Engineer’s report that the most economical use of the water would result if the average head were approximately 32 feet (which can be obtained by raising the flume) and the storage exhausted in a five-hour period, and the reservoir refilled during the noon hour. Under these conditions the power plant could be operated at its full capacity when the river carried approximately 246 second-feet, not taking into consideration the seepage through the dam.

The records of the Water Resource Branch of the United States Geological Survey, of the gauging of Hood River at Dee, about 400 feet below the Power Dam of the Oregon Lumber Company from May 21, 1913, to December 31, 1914, and also just above the back water of the dam and one-half mile below the junction of the Middle Fork and East Fork of Hood River between February 1, 1915, and to December 15, 1917, both of which places are below the intake of the ditch of the East Fork Irrigation District, show that during the critical period for the supply of water for irrigation and power purposes, namely, during the months of July and August, the mean discharge of the river in second-feet was as follows:

1913 1914 1915 1917

July 624 372 285 737

August 354 262 374

The record in this case indicates that the power of the Lumber Company’s plant can be increased by diminishing the seepage through the dam, and this can be accomplished at a minimum expense. Much of this seepage is probably due to the use of the flash-boards on the dam.

It is believed that the amount of water awarded to the Oregon Lumber Company by the Water Board and by the decree of the Circuit Court, a total of 335 second-feet, is sufficient for the successful and convenient operation of its plant. Therefore, the decree of the trial court as to such award is affirmed.

Mt. ‘Hood Water Company.

After taking additional testimony before the Circuit Court and referring the same to the Water Board, by its modified findings the Water Board awarded the Mt. Hood Water Company water for 433.5. acres which had been irrigated under the Mt. Hood Water Company ditch, and also an inchoate right to water for 897 acres additional land under said ditch which is intended to be irrigated; and fixed five years from the first day of January, 1920 (or such further time as may be granted by the state Water Board on proper showing*), as the time within which to utilize the appropriation; and that such appropriation as may be utilized at the expiration of the time fixed by the Water Board shall relate back to and for the priority date of October, 1895.

Upon exceptions being filed to the modified findings as to Mt. Hood Water Company by the Water Board the Circuit Court allowed the Mt. Hood Water Company water for 433.5 acres with a priority date of October, 1895, and denied all further claim by said company. An appeal has been taken from the decree of the Circuit Court in regard to the award to the Mt. Hood Water Company as to the date of priority.

Findings as to Mt. Hood Water Company.

It appears from the record and the Water Board found in substance that the Mt. Hood Water Supply Company posted and filed a notice of appropriation of 1,000 miner’s inches of water out of the East Fork of Hood River in October or November, 1895, and thereafter built its ditches within a reasonable time and completed the main canal in 1898, and began the use of water in June of that year; and that said waters were appropriated for irrigation and domestic purposes; that 31 acres were irrigated in the year 1898, and the area was gradually increased so that in 1904, 186 acres were irrigated; and that thereafter and continuing down to the date of hearing the area irrigated has been gradually increased; that such increase has been made with due diligence considering the local conditions, the character of the lands to be reclaimed, and especially the heavy clearing encountered; that in the year 1905 the Mt. Hood Water Company succeeded to all the rights of the Mt. Hood Water Supply Company and attempted to make a second appropriation of 1,000 miner’s inches for irrigation and domestic purposes; but that the first appropriation made in the year 1895 was made for the purpose of irrigating the lands described in the statement and proof of claimant filed by the Mt. Hood Water Company, and for use for domestic purposes on said land and the amount of water which the company attempted to appropriate by said first appropriation was more than sufficient to supply the needs for all purposes for which a right is claimed herein; that said attempted second appropriation made in the year 1905 was unnecessary, and that no water has been put to a beneficial use by virtue thereof.

That from the claim of the company, and the evidence and testimony filed herein, it appears that about 433.5 acres of land have been. irrigated under the Mt. Hood Water Company ditch and there are about 897 acres additional land under said ditch which it was intended at the time of making the appropriation to irrigate; that inasmuch as the lands to be irrigated are situated in the southern part of Hood River Valley and are covered with timber and are very hard to clear and hard to develop, and that the company and the water users under it have been using reasonable diligence in reducing the land to cultivation and applying the water to a beneficial use, the state Water Board fixed five years from the first of January, 1920 (or such further time as may be granted by the Water Board on proper showing), as the time within which the appropriation shall be utilized and the water applied to a beneficial use; and that such appropriation as may be utilized at the expiration of the time fixed by the state Water Board shall relate back to and for the priority date of October, 1895. The Water Board added a list of the lands irrigated from the Mt. Hood Water Company ditch and date of relative priority October, 1895, for 1,331.1 acres.

It also appears from the State Engineer’s report that during July, 1917, the maximum flow of the water in the ditch of the Mt. Hood Water Company was 20.5 second-feet or approximately 820 miner’s inches and the minimum flow 13.1 second-feet; the average flow 16.6 second-feet, or 1,020 acre-feet, which if applied uniformly to 545 acres, for the season the depth per acre would be 1.87 feet. In addition to the water used from their own ditch some water was secured from the East Fork ditch during that season. It therefore appears that the ditch is of sufficient capacity to irrigate the 1,331.1 acres of land under the same. The report of the engineer contains the following:

“Owing to the fact that all unused water together with the returned seepage from the irrigated lands under this ditch finds its way back into the East Fork of Hood River and is available for use by the Dee Power Plant and other rights below, the diversion of an excessive amount of water to the Mt. Hood Ditch is of little consequence. However, the soil and the topography of these lands are equally as favorable for irrigation as most of the lands in the Hood River Valley and they will not, therefore, require more water for their irrigation than other lands in the valley.”

What we have heretofore said in regard to the statute and the rules and regulations governing appropriations of water applies to all appropriations involved herein.

There is considerable controversy as to the date of the posting of the notice of the appropriation by the Mt. Hood Water Supply Company by virtue of which the Mt. Hood Water Company claims a date of priority as of October, 1895. This date is given in the claim filed by the Mt. Hood Water Company. This company excepted to the original findings of the Water Board and asked that further testimony be taken to establish their rights claiming inter alia that it was entitled to sufficient water to irrigate 1,330 acres of land to the extent of 1,000 inches as of the date of October, 1895. It developed upon cross-examination of the witness Robert Leasure that the notice of appropriation, filed in the county clerk’s office by tbe Mt. Hood Water Supply Company, was dated November 27,1895, and filed for record January 6, 1896. The company’s articles of incorporation were dated November 6, 1895. Therefore, tbe corporation was not in existence in October, 1895. Tbe oral testimony indicates that tbe notice of appropriation was posted in October or November. Tbe witnesses of necessity rely upon memory of what took place about 25 years before giving their testimony. We do not question their veracity but tbe written evidence is tbe safer guide.

It is contended on behalf of tbe Mt. Hood Water Company that tbe testimony as to tbe date of posting tbe notice was not within tbe issues raised by tbe exceptions at tbe time of taking tbe additional testimony. To this contention we cannot accede.

It is also urged as a further reason that at tbe time of taking tbe original testimony before tbe Water Board (Yol. 4, p. 189 of Trans.) it was stipulated that tbe date of posting tbe notice as set forth in tbe claim of tbe Mt. Hood Water Company should be accepted as tbe true date. Tbe stipulation made between tbe company and tbe attorneys for one of the claimants is to tbe effect that tbe witnesses for tbe Mt. Hood Water Company would testify with reference to tbe notice, substantially as set forth in their claim. This stipulation would not cover any errors in tbe date of posting, tbe notice occurring on account of defective memory. Therefore, we make tbe following findings:

Tbe Mt. Hood Water Company should be, and is awarded a date of relative priority of November 27, 1895, for sufficient water to irrigate 1,331.1 acres at tbe rate of 1/80 of a second-foot per acre or its equivalent in case of rotation and that tbe total quantity diverted during the irrigation season shall not exceed three acre-feet per acre for each acre thereof to which water is applied within the time fixed by the Water Board or within thé time that may hereafter be fixed as provided by law; such water to be measured in the company’s ditch immediately above the lateral ditch which is nearest to the headgate. And that the findings and determination of the Water Board, as to the award to the Mt. Hood Water Company, be modified as to such date of priority and approved as modified.

The decree of the Circuit Court will be modified accordingly.

Glacier Irrigation Company.

The Glacier Irrigation Company, a corporation, appeals from that portion of the decree of the Circuit Court making the award to the Oregon Lumber Company of water from the East Pork of Hood River. The Glacier Company did not appeal from the decree confirming the determination of the Water Board as to the award of the water right of itself. Therefore, it is presumed that the decree of the lower court making the award to the Glacier Company is satisfactory to it. Except as the award to the Glacier Company may be affected by the decision on the appeals taken as to the other rights the award to this company cannot be reviewed.

Pacific Power & Light Company.

The Pacific Power & Light Company, a corporation, has a power plant at Tucker’s Bridge on the main stream of Hood River below the confluence with the West Pork, and also has a plant some distance down the river at Powderdale. The Power Company duly filed its statement and proof of claim to the use of the waters of Hood Biver with the Water Board in two parts, designated respectively “Upper Development” and “Lower Development,” setting forth in substance as follows.

The Pacific Power & Light Company is engaged as a public service corporation under the laws of the State of Oregon, in the generation and distribution of electrical energy for light and power purposes, and is the owner of certain specifically described real properties in Hood Biver County which form continuous tracts of land of more than four miles in length at the Upper Development or power property, and more than two miles in length at the Lower Development or power property.

The title to all the real property between the points of proposed diversion and return upon said Upper and Lower properties was derived from the United States, as to certain specific portions of said property upon the admission of the State of Oregon into the Union in 1859, and as to the remainder of said property under selections for internal improvements made by the State of Oregon on July 18,1864; and that

“the title of claimant to said property passed from the United States to the State of Oregon and from the State of Oregon to the various grantees above named and from such grantees by mesne conveyance to claimant herein without condition, exception or reservation.”

Title to Sections 16 and 36 passed from the United States to the State of Oregon by virtue of the act of Congress of August 14, 1848, for school purposes in 1859, when the state was admitted into the Union, and the other land by virtue of a selection made by the state for internal improvements on July 18, “1864 under the act of Congress of September 4,” 1841, list 23, approved by the Department of the Interior of the United States, August 12, 1868, when title passed. The State of Oregon conveyed title to the “Upper Development” tract, to the predecessors in interest of the Power Company on different dates from 1882 to 1903.

The claimant, Pacific Power & Light Company, in its statement and proof of claim as to its “Lower Development,” in addition to the usual statement made before the Water Board, by an exhibit attached thereto, states, among other things, as follows:

“The stream of Hood Eiver is perennial, non-navigable and unmeandered and has well-defined banks and bed and the waters thereof, as they flow over and across the said lands of the claimant are a part and parcel of said lands. Claimant, as the owner of its said lands, owns and possesses the right to have the waters of said stream flow on and across said lands as they are and have been accustomed to 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 livestock 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.

“Claimant and some of its immediate predecessors in ownership of the greater portion of said property have used the waters of said Hood Eiver flowing over and across such lands for the generation of electrical energy for general distribution and sale, as follows:

“In 1901 the flume and power house known as the ‘Power Plume’ were constructed on the said property of claimant. The location of this power plant is shown upon the map attached hereto and marked Exhibit B. At the same time an electric transmission system was constructed in the City of Hood Eiver and vicinity and connected with said power plant. The water of the stream of Hood River, as the same, flows over and across the said property of claimant, was used in -the operation of this plant from the time of its construction to some time in 'the' year 1911 in the generation of electricity for general sale and distribution in the City qf Hood River and vicinity. This plant had a capacity cf approximately 75 kilowatts.

“During the years 1904 and 1905 the Hood River Electric Light & Power Company, a corporation, predecessor in'interest of claimant, constructed on the property described in subdivisions (b), (c), and (d) of paragraph II hereof a hydro-electric power plant, a dam .in. the river and a pipe-line from the dam to the power-house. This power plant connects with said electric transmission system above referred to, which system has been and is being developed and extended from time to time to meet the demands of the public for electric light and power service. Such system and plant have been in continuous operation since the year 1905 and claimant is now operating said hydro-electric plant and system and carrying on its said business. During all of said time the waters of the stream of Hood River, as the”same flows over said property of claimant, was and is now being used in the operation of said plant in the generation of electricity for general sale and distribution. This power development has a head of approximately 46 feet and about 140 cubic feet per second of the water of said stream as it flows on said property is required in the operation of said plant.

“In the year 1913 claimant began the construction of a hydro-electric plant upon its said property to take the place of the power plant now in operation on said property.”

The statement then proceeds to describe the proposed plant as consisting of a dam, a conduit, consisting of earth canal and pipe-lines having a capacity of 750 second-feet of water, which amount it conveys to a power-house, where the water is passed through water-wheels coupled with electrical generators and returned to Hood Biver, all on lands of claimant. Of this proposed development the foundation of the power-house is completed, a bridge across Hood Biver for supporting the pipe-line has been built, concrete saddles for supporting the pipe-line are completed, and all heavy excavation work for the pipe-line has been finished. The foundations and a portion of the superstructure for the transformer station and construction camps have been built and considerable machinery and equipment have been assembled for completing this development. This power plant will be connected with the electric transmission system of claimant in Hood Biver Valley and in the City of Hood Biver and vicinity. The plant is designed to use and will use 750 cubic feet of water per second of the stream of Hood Biver and when the volume of water in the stream is less than 750 second-feet, the plant will require the entire flow of the stream undiminished by the acts or appropriations of others above said lands for the irrigation of land not riparian to the stream; that claimant requires and will use all of such energy so developed and generated as well as that generated by its proposed “upper development.”

The exhibit attached to the statement and proof of claimant as to its “Upper Development” follows much the same line except as to descriptions. The notable differences are that at the upper plant the fall upon the properties is approximately 252 feet available for power purposes; that about the year 1883 diversion works consisting of a flume or ditch and a turbine-house were constructed on said lands by Logan & Crowell and the waters of the stream were used for several years thereafter for the operation of a sawmill. Later, one Tucker reconstructed the mill.

During the years 1911 and 1912 and supplanting the above diversion works there were constructed by the Hydro Electric Company, a corporation, predecessor in interest of claimant, a dam in the river, a power plant and flume leading thereto from -the dam on the property of claimant. This system and plant have been in continuous operation since the year 1912 and claimant is now operating the same. This development has a head of approximately 28 feet and about 640 cubic feet of the water of said stream as it flows in said property is required in the operation of such power plant.

Claimant proposes to supplant the present power development on said property by one consisting of a dam where the stream will be diverted and carried by means of a conduit consisting of earth canal, pipelines and flume, to a power-house located on said lands where the water would be returned to the stream.

The Power Company states as follows: The two proposed plants are designed to use and will require 750 cubic feet per second, and during certain seasons when the water is less than that amount, the entire flow of the stream “diminished by the acts or appropriations of others above said lands for the irrigation of lands not riparian to said stream.”

The Power Company, in its statement of contest against the several irrigation districts and companies, alleges practically the same facts as contained in exhibits to its statement and proof. There can be no mistake as to the claim of this company to a definite quantity of water, namely — 750 second-feet, when we refer to the prayer made by this company in the Circuit Court in its exceptions to the findings of the Water Board. In the Circuit Court this company “prays for a decree of this court as follows:

“That said Findings of Fact and Order of Determination of said State Water Board be modified so that there shall be awarded to said Pacific Power & Light Company, for power purposes, a continuous flow of 750 second-feet of the waters of said stream of Hood River, and that the claims and appropriations of each of the other claimants to said waters herein be adjudged to be subsequent in time and inferior in right to this exceptor’s said claim, excepting,” certain enumerated rights acquired by prescription.

It is seen as stated that the Power Company in its statement and proof, and statement of contest before the Water Board, and its exception in the Circuit Court asked for a definite amount of water to be awarded to it without regard to the rights of others. The Power Company alleges in detail that it “diverted” and “used” water from Hood River in 1883 and again in 1901. The writer sees no distinction between “diversion” and “use” and “appropriation” and “use.” Applying the law, as tersely stated by Mr. Justice Burnett in the Caviness case, it is clear that the old riparian right rule does not apply, as the claimant Power Company asks, in effect, to be awarded a definite appropriation from Hood River. A riparian right is not and cannot be declared in advance, to be for a definite quantity of water. It would change as conditions change and as the requirements of other riparian proprietors would be demanded and utilized. At page 422, 60 Or. (119 Pac. 736) we read:

■ ‘Claiming then, as he does, from the month of June, 1865, the right to nse a fixed quantity of water upon his land without regard to its duty to others, the plaintiff assumes the character of an appropriator in this litigation and must be held to have waived his rights as a riparian proprietor, at least for the purposes of this suit, although the river in its natural course washes his land.”

The Caviness case was followed and applied in the case of In re Willow Greek, siopra. By reason of the fact that the old riparian right doctrine does not provide for a fixed quantity df water to be apportioned to different persons or tracts of land, the rule is in conflict with the statute of 1891, referred to above, and 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. The Water Code has been upheld by various decisions of this court, and also has the sanction of the federal court as to the “due process clause”: Pacific Livestock Co. v. Oregon Water Board, 241 U. S. 440 (60 L. Ed. 1084, 36 Sup. Ct. Rep. 637).

The granting of the contention of the Pacific Power and Light Company, and going back to the old rule of “continuous flow” of a stream, would take the heart out of the Water Code and render the act of 1891 a delusion. Under the provision of the last-named act the people of Hood River Valley, as well as many more in other parts of the state, have complied with the statute, which has been operated under for more than 30 years, and made their appropriations, and expended vast sums of money in establishing homes and clearing their land and applying the water to a beneficial use, long before the Power Company or its predecessor formed any intention of utilizing the water, or making any claim as an appropriator, or as a proprietor, except for the lesser quantity, which has been awarded that company.

The riparian right rule can be applied as to riparian owners involving the floating of logs and the like, such as the case of Weiss v. Oregon Iron Co., 13 Or. 496 (11 Pac. 255); Kamm v. Normand, 50 Or. 9 (91 Pac. 448, 126 Am. St. Rep. 698, 11 L. R. A. (N. S.) 280; Logan v. Spaulding Log. Co., 100 Or. 731 (190 Pac. 349).

The opinions rendered prior to the enactment of the statutes in question are of little assistance in construing the statutes. The same may be said of the cases in those states which adhere to the doctrine of riparian rights instead of adopting the system of appropriation, among which are listed California and Washington.

In 40 Cyc. 557 the law is declared there:

“Adoption or Abrogation of Common-law Doctrine. Although in a number of states the common-law rules as to riparian rights have been adopted as a part of the law and are still in force as such rights are always subject to change and modification by statute; and in many of the western states the common-law doctrine of riparian rights has been abrogated or curtailed by constitutional or statutory provisions or the course of judicial decisions, because entirely unsuited to the natural conditions of the country or inconsistent with the proper development of these industries or those beneficial uses of water which are deemed of paramount importance.” (Italics ours.)

Within the states that are of a semi-arid nature and perhaps within some states that are wholly arid, it is said, the two doctrines of irrigation, one the rule of priority of appropriation and the other the common-law theory of riparian ownership, may both exist at the same time, the former doctrine of appropriation applying to public lands and waters, or to unappropriated waters made public by Constitution or statutory enactments, the latter, or common-law rule being limited in its application to vested rights: 15 R. C. L. 445, § 3. In Oregon we have a statutory enactment that all waters within the state belong to the public: Or. L., § 5716.

The record shows as follows: The Power Company plant at Tucker’s- Bridge, or Upper Development, is located in the NE. % of the SE. % of Sec. 15, T. 2 N., R. 10 E., W. M., being about five miles above the junction of Hood River with the Columbia River below all of the principal tributaries of Hood River excepting Neal, Whiskey and Indian Creeks, the flow of which is relatively small. The report of the State Engineer shows that on October 27, 1917, the measurement of water used at the Tucker’s Bridge plant, or “Upper Development,” with the wheel-gates open, so as to use the maximum quantity, was 273 second-feet with a 27.5 feet head, and theoretical horse-power 353. The report of the State Engineer also shows that the Power Company plant at Powderdale, or Lower Development, is located in NE. %, NE. %, Section 36, T. 3 N., R. 10 E., W. M., being about one and one-half miles above the mouth of Hood River and below all tributaries with the exception of Indian Creek.

The report shows that on October 13, 1917, a quantity of water used at the Powderdale plant, or Lower Development, with the gates open so as to take the maximum quantity of water with an effective head of 54.4 feet, was determined to be 92 second-feet.

The flow of Hood River at Powderdale for the year from October, 1913, to September, 1914, in second-feet was as follows:

Maximum Minimum Mean

4890 375 1080

Tbe mean flow for August, 1914, was 560 second-feet, and for September of that year 560 second-feet. At Tucker’s Bridge for tbe year from October, 1896, to September, 1899, the measurements of tbe river were — ■

9150 ‘ 452 804

In 1914 tbe measurements showed:

June 785 . 625 715

July 700 495 574

Tbe report also shows as follows:

“Work was started some time back upon a power plant at Powderdale, which was very much more extensive than tbe one now in operation. After tbe completion of tbe concrete saddles, which are to carry tbe pipe-line, tbe work was stopped and bad not been resumed up to tbe end of 1917.”

Tbe Water Board and tbe Circuit Court awarded tbe Power Company a priority as of 1901 for a continuous flow of 140 second-feet of water at tbe company’s Powderdale plant and a continuous flow of 640 second-feet for its Tucker’s Bridge plant, with a priority for tbe year 1911.

Tbe Power Company contends that both lower tribunals erred in treating its voluntary limitation of its claim to tbe use of but 750 second-feet of such water as a claim of appropriation of that quantity of water and asserts that the record discloses that the Power Company has at all times relied solely upon its riparian rights and never upon appropriation as such.

The main question for determination as to the Pacific Power & Light Company upon this appeal is as to its claim for water-power as a riparian proprietor, that is, what is the nature and extent of the Power Company’s right?

The principles of the common law of England have been adopted in the State of Oregon only so far as the same are applicable to our conditions and in consonance with the public policy, Constitution and statutes of the state. The common-law rule, as to riparian rights to water, has been greatly modified in Oregon; Carson v. Gentner, 33 Or. 512, 515 (52 Pac. 506, 43 L. R. A. 130); 7 Wiel, §118, p. 141; Caviness v. La Grande Irr. Co., 60 Or. 410 (119 Pac. 731); Hough v. Porter, 51 Or. 407 (95 Pac. 722, 98 Pac. 1083, 102 Pac. 728); In re Willow Creek, 74 Or. 592, 623 (144 Pac. 505, 146 Pac. 475).

The territorial law of Oregon, passed June 27, 1844, contained this provision: “The Common Law of England and principles of equity, not modified by the statutes of Iowa or of this government, not incompatible with its principles, shall constitute a part of the law of this land.?’ Laws of Oregon 1843-49, p. 100.

Article XVIII, Section 7, of the Constitution of Oregon provides “That all laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.” See Perry v. Fletcher, 93 Or. 43, 52 (182 Pac. 143); Wright v. Wimberly, 94 Or. 1, 37 (184 Pac. 740).

At common law 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. No one except the riparian owner had the right to divert any of the water from such stream. Our statutes referred to above make no distinction between the riparian owner and the owner of other land capable of being irrigated, although not crossed by or adjoining the stream. Many of the provisions of our statutes are equally repugnant to the common-law doctrine of riparian rights taken as a whole: Boquillas etc. Col v. St. David etc. Assn., 11 Ariz. 128, 135 (89 Pac. 504).

It was stated by the Supreme Court of Utah in Stowell v. Johnson, 7 Utah, 215 (26 Pac. 290), thus:

“At common law the,riparian proprietor is entitled to have the water flowing, in quantity and quality, past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation.”

In the celebrated case of Lux v. Haggin, 69 Cal. 255 (10 Pac. 675), the Court said: “The doctrine of appropriation, so called, is not the doctrine of the common law.”

The statutes of Nevada adopted the common law of England in the following words:

“The common law of England, so far as it is not repugnant to, or in conflict with, the Constitution and laws of the United States, or the Constitution and laws of this state, shall be the rule of decision in all the courts of this state.”

The Supreme Court of that state in Reno Smelting etc. Co. v. Stevenson, 20 Nev. 269 (21 Pac. 317, 19 Am. St. Rep. 364, 4 L. R. A. 60) construing this statute in its application to riparian rights, said.:

“The statute is silent upon the subject of the applicability of the common law, and we think the term ‘common law of England’ was implied in the sense in which it is generally understood in this country, and that the intention of the legislature was to adopt only so much of it as was applicable to our condition. An examination of the authorities will render this apparent.”

In Boquillas etc. Co. v. St. David etc. Assn., supra, the Supreme Court of Ariz., page 136, of the report said:

“Whether or not the applicability of the common law to the physical conditions which prevail in the territory should enter into the construction to be given the statute, and whether or not the subsequent legislation can be construed as a recognition that the common law as to riparian rights was adopted by statutes of 1864 adopting the common law, we think a reading of the latter makes it clear that any right granted by the statute was not intended to become property in such a sense that it might not be abrogated by future legislation. The limitation expressed in the act cannot be construed as referring solely to the laws of the United States or of the territory in force at the time of the adoption of the statute. * *

“If the legislature of the territory may confer riparian rights by statute, it seems to us clear that it may do so upon the condition that such rights thus conferred may subsequently be modified or abrogated. 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 be 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 latter case was affirmed by the Supreme Court of the United States sub nom. Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339 (53 L. Ed. 822, 29 Sup. Ct. Rep. 493, see, also, Rose’s U. S. Notes). The court said:

“By the statutory bill of rights, Art. 22, all streams capable of being used for the purposes of irrigation are declared to be public property and no one shall have the right to appropriate them exclusively, except under such equitable regulations as the legislature shall provide * *

“The right to use water is not confined to riparian proprietors. Gutierres v. Albuquerque Land & Irrig. Co., 188 U. S. 545, 556 (47 L. Ed. 588, 23 Sup. Ct. Rep. 338); Coffin v. Left Hand Ditch Co., 6 Colo. 443, 449, 450; Wiley v. Decker, 11 Wyo. 496 (73 Pac. 210, 220, 100 Am. St. Rep. 939). Such a limitation would substitute accident for a rule based upon economic considerations, and an effort, adequate or not, to get the greatest use from all available land. Whether there are any limits of distance is a question not arising in this case.”

In Gutierres v. Albuquerque Land etc. Co., 188 U. S. 545 (47 L. Ed. 588, 23 Sup. Ct. Rep. 338), it is said at pp. 553, 556:

“That the purpose of Congress was to recognize as well the legislation of a territory as of a state with respect to the regulation of the use of public waters is evidenced by the act of March 3, 1891, c. 561, 26 Stat. 1095. By the eighteenth -section of the act of 1891 it was provided as follows: * *

“It is conceded on behalf of appellant that, by the laws of Mexico in force when the territory of New Mexico was ceded to the United States, the use of the waters of both navigable and unnavigable streams was not limited to riparian lands, but extended as well to lands which did not lie upon the banks of the rivers, and that sneh use was subject to be regulated and controlled by the public authorities.”

In Fallbrook Irr. Dist v. Bradley, 164 U. S. 112, at page 166 (41 L. Ed. 369, 17 Sup. Ct. Rep. 56, 66), we read:

“The general power of the legislature over the subject of providing for the irrigation of certain kinds of lands must be admitted and assumed. The further questions of limitation, as above propounded, are somewhat legislative in their nature, although subject to the scrutiny and judgment of the courts to the extent that it must appear that the use intended is a public use as that expression has been defined relatively to this kind of legislation.”

In Peoples v. Appraiser, 33 N. Y. 461, it is said, as quoted by Mr. Justice Nave in the Boquillas case, supra:

“No doctrine is better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes, not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a case where that reason utterly fails.”

In Hill v. American Land & Livestock Co., 82 Or. 202 (161 Pac. 403) the Pacific Livestock Company, one of the defendants, among other things in its answer, averred as follows:

“That Trout Creek flows, and from time immemorial- has flowed, through, over and upon these said lands, and which said lands are riparian thereto, and-riparian rights attached thereto, and the said defendant is entitled to have the water of said creek flow by, through, over and upon the said lands, and to make such use of said water as a riparian owner is entitled to make thereof.”

Mr. Justice Burnett, speaking for this court, at page 207 of the Report, makes use of the following language:

“Thus it is made plain that riparian rights are not the same in essential particulars as the common-law privilege thus designated. In the arid and semiarid regions of the west the principal thing is the beneficial use of water as contrasted with its mere presence under the old common-law doctrine that a person whose lands abutted upon a stream was entitled to have it flow past his premises as it was naturally wont to do undiminished in quantity except for domestic purposes and unimpaired in quality. The rule had its rise in England, where irrigation was at the_ time practically unknown. The modification embodied in the act of Congress referred to and in the general legislation of the semi-arid western states is founded upon the necessity of the situation and the principle of making the water do the greatest good to the greatest number.”

Again, on page 210, of the Report, it is said:

“At the outset, under the very nature of things, no one can tell what particular drop of water is his own. It is the use of an aliquot part of this amount which is in question; and no adequate determination of the same can be had without the presence of all who are interested in the entire flowage of the stream.”

In Williams v. Altnow, 51 Or. 275 (95 Pac. 200, 97 Pac. 539), the defendant claimed the right to water for irrigation as a riparian proprietor. Former Mr. Justice R. S. Bean, in dealing with the question at page 297, records these words:

“There are several reasons why this position cannot be sustained. In the first place, in the opinion of the writer, it is doubtful whether the owner of land through, which a non-navigable stream flows can claim the right as riparian proprietor to use the waters thereof for irrigation as against subsequent appropriators on the stream below him. * * Every riparian proprietor is entitled, as against other riparian proprietors, to a reasonable use of the waters of a non-navigable stream flowing through his land, and after the natural wants of all have been supplied he may make a reasonable use of the surplus for irrigation purposes, when he can do so without infringing upon the corresponding rights of the other proprietors: Jones v. Conn, 39 Or. 30 (64 Pac. 855, 65 Pac. 1068, 87 Am. St. Rep. 634, 54 L. R. A 630). * *

“A riparian proprietor has no title to the water flowing over his land, but only the right to use it while it is passing his place, and this right is subordinate to a corresponding right in all the other proprietors. One proprietor cannot unreasonably detain or give the water another direction, or use it in any way to the injury of the others.”

The case of United States v. Rio Grande Irr. Co., 174 U. S. 690, 702 (43 L. Ed. 1136, 19 Sup. Ct. Rep. 770), is authority for the statement that it is undoubtedly true that a state may change its common-law rule as to every stream within its dominion and permit the appropriation of the flowing water for such purposes as it deems wise. This authority is limited, in the absence of the consent of Congress, so that the state cannot destroy the right of the United States to water necessary for beneficial use for government property and by the superior power of the government of the United States to prevent interference with the navigation of navigable streams.

In United States v. Rio Grande Irr. Co., supra, it was said, as found at page 704 of the Report:

“Notwithstanding the unquestioned rule of the common law in reference to the right of a lower riparian proprietor to insist upon the continuous flow of the stream as it was, and although there has been in all the western states an adoption or recognition of the common law, it was early developed in their history that the mining industry in certain states, the reclamation of arid lands in others, compelled a departure from the common-law rule, and justified an appropriation of flowing* waters both for mining purposes and for the reclamation of • arid lands, and there has come to be recognized in those states, by custom and by state legislation, a different rule — a rule which permits, under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes. * *

The court there quotes from the opinion of Broder v. Water Co., 101 U. S. 274, 276 (25 L. Ed. 790, see, also, Rose’s U. S. Notes), as follows:

“It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was. rather a voluntary recognition of a pre: existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.”

The act of 1891 from which we have quoted above makes reference to riparian rights, and thereby recognizes whatever riparian rights a landed proprietor may have, but this act does not attempt to define a riparian right nor in any manner to establish any rule respecting such interests: Hough v. Porter, supra. The different statutes recognize and protect vested rights. By the act of 1909, Section 5717, Or. L. (Amended Law of 1923, p. 439), the legislature, in its wisdom, saw fit to define what shall be deemed to constitute a vested right in a riparian proprietor. Subdivision 2 of that section declares that the actual application of water to beneficial use prior to the passage of the act by a riparian proprietor shall be deemed to create in such riparian proprietor a vested right to the extent of the actual application to beneficial use. Subdivision 3 makes provisions where a riparian proprietor has initiated a right by the commencement of the construction of works for the application of water tó a beneficial use. There can be no doubt as to the intent of the legislature in this respect.

Section 5721 et seq., Or. L., provides for the procedure in the application of water for a beneficial use after the passage of the act of 1909, and requires an application to the State Engineer for a permit to make such appropriation and for the issuance thereof, the nature of such application, the condition of the permit, and for a record of such proceedings. Section 5729, Or. L. declares thus:

“The right acquired by such appropriation shall date from the filing of the application in the office of the state engineer.”

Chapter V of Title XXXIII, Section 5731 ¿t seq., under which the present proceedings were had, provides for the determination of water rights.

The legislative enactment having defined and regulated the riparian right of the claimant, Power Company, the question arises whether such authority resides in the legislative branch of our state government. This inquiry involves, to a certain extent, the nature of the right obtained by the Power Company to the waters of the river upon which its lands are located. It is not a new question.

In the case of Caviness v. La Grande Irr. Co., 60 Or. 410, at pp. 421 and 423, Mr. Justice Burnett records the following language:

“In the very nature of things, a court cannot fix in advance by its decree what quantity of water will be reasonable in the future for the use of a riparian proprietor claiming the duty of water in that character. This conclusion is a necessary corollary to the case of Jones v. Conn, 39 Or. 30 (64 Pac. 855, 65 Pac. 1068, 87 Am. St. Rep. 634, 54 L. R. A. 630).

“Primarily, any use of the water of a natural stream for a beneficial purpose is free to him who has an opportunity to take it without infringing upon the property rights of another. At least on the Pacific slope, the exigencies of mining and agriculture have established this principle since the earliest times. The general government acquiesced in its application since the first settlements under the American regime, and by the Act of Congress of July 26, 1866, c. 262, 14 Stat. 253 (U. S. Comp. St. 1901, p. 1437), and in the Act of March 3, 1877, c. 108, 19 Stat. 377 commonly known as the ‘desert land act,’ has enunciated the doctrine in statutory form.”

In Re Willow Creek, 74 Or. 592, 623, 625 (144 Pac. 505, 146 Pac. 475), this court held in effect that the common-law rule as to a riparian owner prevails in this state only to a limited extent; the old rule of “continuous flow” has been changed by custom and crystallized into express law by statute; that a riparian proprietor cannot lay claim to the undiminished flow of a stream without actual use, simply because it adds beauty to outlook, citing 4 Kinney, Irr., § 1975; and that a riparian owner’s right to water for irrigation is limited to the amount of water needed and used.

In the case of In re Willow GreeJc, supra, the Eastern Oregon Land Company claimed a riparian right to the use of water for 7,000 acres through which Willow Creek passes. That company also claimed appropriations through three ditches constructed respectively in 1882, 1883 and 1887,, for tracts of land separate and distinct from the other land of the company. That company also claimed the right to have irrigated by natural overflow certain tracts of land aggregating 370 acres. At page 621 of the Report it was stated in effect that the overflow of these lands was analogous to a crude manner of irrigation much the same as the method adopted by other irrigators on the same stream at an early date when they cut ditches and allowed the water to flow into the sloughs and low places and subirrigate the land. It was there stated:

“It is unimportant how difficult or with what ease water can be appropriated for irrigation. It is tantamount to a beneficial use and is a valuable right which should not be ignored.”

At page 622 the claim of the company for the remainder of the 7,000 acres is shown in the following words:

“In support of its claim the company contends that the law of riparian rights recognized in this state at the time the appellants’ land passed out of the government should govern their rights, and cannot be affected by appropriations made subsequent to that time except as such appropriation rights have become vested by consent, purchase or adverse user.”

The land company was awarded appropriations as claimed through its three ditches and as an appropriation for 3.65 second-feet for its overflowed lands, and requiring the installation of measuring devices. As shown on page 627 et seq. the company was denied the claim as a riparian proprietor and was allowed “no additional use of water” by reason thereof, by virtue of authority of subdivision 2, Section 6595, L. O. L. (now Section 5717, Or. L.).

In Cookingham v. Lewis, 58 Or. 484 (114 Pac. 88, 115 Pac. 342), Mr. Chief Justice Eakin had under consideration the statute of 1909, known as the “Water Code.” At page 497 of the Report, in referring to the report of the Oregon Conservation Commission, he notes:

“In the report of the commission to the Governor, of date November, 1908, as to the conditions and possibilities under consideration, which is exhaustive on that subject, the defects of the former methods of acquiring water rights are set forth and the undertaking contemplated by the commission outlined, namely — to conserve the surplus waters, as well as to settle and make definite water rights already existing as the only means of reclaiming arid lands of the state under the Carey act * *

“The whole purpose of the present system of water laws has been developed with a view to state control to reduce legislation to a system that shall accomplish this reclamation, together with the other uses of public water as a great public enterprise, carried out by an administrative system that will also accomplish a speedy adjustment of relative rights through these boards, not only of the individual cases, but of the stream system.”

In Coquille Mill & Mercantile Co. v. Johnson, 52 Or. 547 (98 Pac. 132, 132 Am. St. Rep. 716), at page 551, Mr. Commissioner Slater records the following language:

“But ‘riparian owners upon navigable fresh «rivers and lakes may construct, in the shoal water in front of their land, wharves, piers, landings, and booms, in aid of and. not obstructing navigation. This is a riparian right, being dependent upon title to the bank, and not upon title to the bed of the river. Its exercise may be regulated or 'prohibited by the state; but, so long as not prohibited, it is a private right, derived from a passive or implied license by the public.’ ” (Italics ours.)

In Parkersville Dist. v. Wattier, 48 Or. 332 (86 Pac. 775, 777), cited in Mr. Justice McCourt’s opinion, Mr. Justice Moore, at page 339 of the Report, records the following language:

“In Carson v. Gantner, 33 Or. 512 (52 Pac. 506, 43 L. R. A. 130), the plaintiff maintained a ditch across certain lands owned by the State of Oregon which it thereafter conveyed to the defendants without reserving any accrued or vested water rights from the operation of the deed. The defendants having intermeddled with the ditch, is was held, in a suit to enjoin such interference, that the plaintiff had the right to enter upon their premises to repair the conduit. In referring to what is now incorporated in B. & C. Comp, as Section 3338, and alluding to the policy of the State of Oregon in enacting the clause herein before quoted, it was said: ‘This statute was a legislative sanction, confirmatory of the customs of miners, and, like the act of Congress of July 26, 1866, was the recognition of a pre-existing right, rather than the granting of a new easement in its real property.’

“The doctrine, once declared, that the rights of a riparian proprietor who had secured from the United States a patent for land before the passage of the act of Congress of July 26, 1866, thereby defeated the claims of a prior appropriator of the water of a stream flowing through such lands (Van Sickle v. Haines, 7 Nev. 29), has been expressly overruled: Jones v. Adams, 19 Nev. 78 (6 Pac. 442, 3 Am. St. Rep. 788).”

The recognition by law of the right of an appropriation is of necessity an infringement or curtailment of the common-law rule as to a riparian owner. To illustrate: If ten persons are tenants in common of a tract of land, and a definite one tenth of the area is taken away from them, or away from the tract, the right of each of the owners is affected. Hence, when an appropriation of a definite quantity of water from a stream is permitted and made, “thus,” as said in the Caviness v. La Grande case, “destroying one of the essential characteristics of riparian user considered as a tenancy in common,” all the “tenants in common” in such water, or riparian proprietor, are affected. When the State of Oregon recognized the right of appropriation of the waters of the streams of the state, the old riparian doctrine of “continuous flow” was materially changed.

In early days when there was little or no government, the miners of the west adopted the custom of diverting water from the stream and using it in their placer digging and small power plants. This custom came to be recognized as an established rule. The first taker from the stream had the first right to the water taken and used. No head was given to the “continuous flow” doctrine. This custom led to similar diversions for gardens and fields. When government in these regions was established, the courts found these customs fixed and ingrafted to such an extent that they were at once recognized and enforced. These customs date practically from the time of first settlement. By an act of the legislature of Oregon in 1864 it was enacted that—

“Miners shall be empowered to make local laws in relation to the possession of water rights, the possession and working of placer claims, and the survey and sale of town lots in mining camps, subject to the laws of.the United States.” Deady & Land’s Code, 687; Hill’s Code, § 3832.

Two years later Congress gave formal, official recognition to such customs in the following language:

“Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed. * * Act of July 26, 1866, c. 262, § 9; 14 Stat. 253; 5 Comp. St. (1916) 4647; U. S. Rev. St., §2339.”

The very essence of the common law is flexibility and adaptability. It does not consist of fixed rules but is the best product of human reason applied to the premises of the ordinary and extraordinary conditions of life, as from time to time they are brought before the courts. Although the common law is homogeneous, yet it finds widely different expression in different jurisdictions. If the common law should become so crystallized that its expression must take on the same form wherever the common-law system prevails irrespective of physical, social or other conditions peculiar to the locality, it would cease to be the common law of history, and would be an inelastic and arbitrary Code. It is one of the established principles of the common law which has been carried along with its growth, that precedents must yield to the reason of different or modified conditions.

The common law having been partially adopted by statute, it is plain that the common-law rule as to the “continuous flow” of a stream, or riparian doctrine, may be changed by statute, except as such change may affect some vested right.

Therefore, it will be seen that the State of Oregon recognized and adopted the rule conferring the right of appropriation of water long before the state conveyed the land of the Power Company to its predecessors. Such right of appropriation was recognized and adopted in principle when the statute of 1864 was passed. The Power Company recognized the rule that those obtaining title to land take the same subject to the laws then prevailing: In re Willow Creek, 74 Or. 627 (144 Pac. 505, 146 Pac. 475). When the state conveyed the lands to the Power Company’s predecessors, the law prevailing in this state authorized an appropriator subject to rights existing at the time of his appropriation, to take water from the streams of the state for a beneficial use, and convey the same to nonriparian land; provided he could legally obtain access to the stream. No one has any property in the water itself but a simple usufruct.

It was within the province of the legislature, by the act of 1909, to define a vested right of a riparian owner, or to establish a rule as to when and under what condition and to what extent a vested right should be deemed to be created in a riparian proprietor: Kansas v. Colorado, 206 U. S. 46, 94 (51 L. Ed. 956, 973, 27 Sup. Ct. Rep. 655, see, also, Rose’s U. S. Notes); Sternberger v. Seaton, 45 Colo. 401, 403 (102 Pao. 168); Clark v. Nash, 198 U. S. 361 (4 Ann. Cas. 1171, 1174, 49 L. Ed. 1085, 25 Sup. Ct. Rep. 676); Atchison v. Peterson, 87 U. S. 508 (22 L. Ed. 414); Boquillas L. & C. Co. v. Curtis, 213 U. S. 339 (53 L. Ed. 822, 29 Sup. Ct. Rep. 493); Van Dyke v. Midnight Sun, M. & D. Co., 177 Fed. 85 (100 C. C. A. 503); United States v. Rio Grande Irr. Co., 174 U. S. 690, 703 (43 L. Ed. 1136, 19 Sup. Ct. Rep. 770, see, also, Rose’s U. S. Notes).

The statute of this state plainly declares that all waters within the state from all sources of water supply belong to the public: Section 5715, Or. L. This is, of course, subject to the further provision of the act. As we have noted the courts of this state and other states and of the United States have upheld the legislative enactments of this state and other similar statutes. Rights to public waters can be acquired as provided by the several statutes of this state: Cookingham v. Lewis, 58 Or. 484, 490 (114 Pac. 88, 115 Pac. 342); Caviness v. La Grande Irr. Co., supra.

Under our present statute, defining what shall constitute a vested right of a riparian proprietor, the claim of the Pacific Power & Light Company as a riparian owner of land on Hood River to a continuous flow of the specified quantity of water over its land cannot be maintained.

As already noted, the Water Board and the Circuit Court awarded the Power Company rights as an appropriator. While its claims are not asserted to be in form as claiming an appropriation, it is suggested on behalf of the Power Company that considering its right from that standpoint, the award to the Power Company is incorrect.

In the Power Company’s statement and proof of claimant regarding its “Upper Development” or “Tucker’s Bridge plant,” the following questions and answers appear:

“Q. When was water first used for irrigation, or other beneficial purposes?

“A. In 1883 the water was first used for power purposes.

“Q. State the means of utilizing such water, giving the name by which the ditch is most commonly known, if a ditch is used.

“A. The first diversion made by Logan & Crowell. Later enlarged by diversion works, flume and ditch and turbine house known as the ‘Old Tucker Mill Ditch,’ later reconstructed and known as ‘Tucker’s Bridge Plant.’ ”

The Power Company’s allegations as to the early use of these waters by its predecessor in interest is not denied. The difficulty, however, arises from the fact it is not shown how much water was used by the first diversion made by Logan and Crowell, nor the quantity diverted when the diversion works were later enlarged and the flume and ditch and turbine house known as the “Old Tucker Mill Ditch” were constructed.

It would seem to be an easy matter to compute the amount of water that would be used if the size and grade of the flume and ditch, or the size of the wheel and the head available were given. It does not appear to háve been the intention of the early appropriators, about in 1883, to use any more water than was actually diverted at. that time.

It would seem from this testimony that the Power Company is entitled to a right of a certain quantity of water as of the date of abont 1883, or later, and xinder all the circumstances the Power Company should be permitted to apply to the trial court to submit additional proof and data as to such quantity of water diverted at the times mentioned. No abandonment of such early right appears in the record.

Section 5803, Or. L., provides as follows:

“Every person, firm, or corporation or association hereinafter called ‘ claimant, ’ claiming the right to the use of water for power development, shall on or before the first day of January, 1916, and on or before the first day of January of each year thereafter, pay to the state of Oregon in advance an annual license fee based upon the theoretical water horse-power claimed under each and every separate claim to water, graduated as follows, to wit: Ten cents for each and every theoretical water horse-power up to one hundred, inclusive; five cents for each and every theoretical water horse-power in excess of one hundred and up to and including one thousand; and one cent for each and every theoretical water horsepower in excess of one thousand; provided, however, upon filing the statement as hereinafter provided, the United States, or the state, or any municipal corporation, claiming the right to the use of water to any extent for the generation of power, or any other claimant to the right to use water for the generation of twenty-five theoretical water horse-power, or less shall be exempted from the payment of all fees herein provided. (L. 1911, c. 236, § 1; L. 1915, c. 213, § 1.) ”

Section 5804, Or. L., requires a written statement to accompany the fees paid setting forth the name and address of the claimant, name of the stream from which the water is appropriated, or claimed for power development, a description of the 40 acres, or smallest legal subdivision in which the point of diversion and point of return are located; the date of the right as claimed; the maximum amount of water claimed expressed in cubic feet per second of time; tbe total average flow utilized; tbe manner of developing power and the use to wbicb tbe power is applied and other data.

Tbe first enactment of Section 5803, Cbap. 236, p. 418, Gen. L. of 1911, required claimants claiming tbe right to tbe use of water for power purposes where water was applied to tbe development or generation of power, and tbe power generated thereby prior to tbe twenty-second day of May, 1909, to pay such license fee. By Cbap. 213, Gen. Laws of Or. 1915, tbe section was amended so as to read as above quoted, eliminating tbe clause containing tbe date of May 22, 1909.

It is shown on behalf of tbe Pacific Power and Light Company that in compliance with tbe act of 1911 tbe Power Company filed its statement with tbe State Engineer in December, 1911, and paid tbe license fee and annually thereafter filed certain statements of -its water-power claim with tbe State-Engineer and paid license fees thereon pursuant to tbe statute, each year up to December, 1914, inclusive, claiming 1,500 second-feet of water for power purposes, tbe annual license fee being $121.70. During each of those four years tbe company also filed a statement of a claim to tbe use of 100 second-feet of water at what was called tbe Old Evans plant, that being a small 75-kilowatt plant, wbicb bad its intake on what was formerly tbe N. C. Evan’s property situated just above Powderdale, and paid tbe license fee therefor of $33.40 annually.

In December, 1915, tbe Power Company filed its statement and paid its license fees on tbe claim as to tbe Lower Development, for 750 second-feet of water. In the same month it also filed the claim as to its Upper Development, claiming 1,000 second-feet of water and paid a license fee therefor of $163.18. The same claims were filed for the Upper and Lower Development in December, 1916, and 1917. In December, 1918, the Power Company, in filing its claim and paying its license fees for the year 1919, reduced its claim to the use of water at the Tucker’s ridge plant, or Upper Development, from 1,000 second-feet to 750 second-feet, and paid the license fee accordingly. It also filed its claim for 750 second-feet as before on the Lower Development and paid the license fee.

Commencing in 1913 the Power Company expended something in the neighborhood of $200,000 in substantial development of its plants. The financial conditions prevailing during the World War and since, rendered it inexpedient to proceed with the development. It is not definitely determined by the Power Company, as we understand the record, whether it intends to develop its plant in one unit or two. '

By Section 5789, Or. L., the use of the waters of the state for the purpose of furnishing electrical power for all purposes is declared to be beneficial use and a public necessity and confers the right to divert unappropriated waters for such beneficial use.

It is significant that the water law of 1891 provided for appropriations for irrigation, domestic uses and watering livestock on dry land. While the Water Code of 1909, § 5715, Or. L., et seq., provides for the appropriation of water for a beneficial use, Section 5721 provides for making application to the State Engineer for a permit to use water for beneficial use. While it is not shown that the Power Company applied for such a permit, it made substantially the same kind of an application under the statute of 1911 and 1915: Or. L., § 5803. Under the circumstances, the Pacific Power and Light Company should be awarded an inchoate right to 110 second-feet of water in addition to the 640 second-feet awarded by the Water Board and Circuit Court, to be diverted at its Upper Development, or Tucker’s Bridge plant, and allowed until January 1, 1929, or within such further time as may be allowed by the State Engineer, as provided by law, to make an application thereof to a beneficial .use, when so made to have a date of relative priority ¡of 1911.

General Provisions.

For the purpose of permitting the Pacific Power and Light Company to submit proof as to the amount !of water used about the year of 1883 at its Lower Development, this portion of the cause will be remanded to the Circuit Court.

There is considerable testimony in the record regarding the duty of water which is always an important subject in such cases. There is testimony of an expert to the effect that 28/100 of a miner’s inch per acre would be sufficient for the needs of the irrigators in. the Hood River system. The Water Board allowed l/80th of a second-foot per acre not exceeding three acre-feet per acre during the irrigation season. While it might be possible to use a less amount than allowed by the Water Board, it is not believed that it is practicable with the facilities available for the irrigators to use less than that amount. The lands involved are of little or no value without water for irrigation. It appears that the use of the water from these streams is wasteful to a certain extent.

The duty of water, as fixed by the Water Board, should not be changed provided that waste of water must be prohibited and when the amount awarded is not actually used for irrigation or domestic purposes the water must be shut off from the ditches and laterals and allowed to flow in the streams. The various irrigators and users of water for domestic purposes and watering livestock from Hood River and its tributaries are hereby required on or before March 1, 1925, to put the ditches, canals, flumes, gates, pipes and laterals in good serviceable condition by repairing and puddling the ditches, canals and laterals, repairing and tightening the flumes, repairing the pipes, all in a good and husband-like manner, so as to prevent waste in the use of water.

Commencing with the irrigating season of 1925, any waste in the use of water in conveying the same or irrigating the land, or using the same for domestic purposes, by any water user from Hood River, or its tributaries, is hereby enjoined and inhibited.

With the modifications and exceptions above noticed, the decree of the lower court is affirmed; each party to pay his, her or its own costs in this court.

Affirmed as Modified.

McBride, C. J., and Rand and Coshow, JJ., concur in special opinions. Burnett, Brown and McCourt, JJ., dissent in special opinions.