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<br />0224 <br /> <br />. <br /> <br />. <br /> <br />The plaintiff brought the action to enjoin interference with <br />or lessening of the volume of the Rogue River, a non-navigable <br />stream,- in the state of Oregon. The plaintiff had never <br />made an appropriation of water from the stream but based his <br />claim solely on his alleged rights as a riparian owner of <br />land taken by United States patent pursuant to the Homestead <br />Act of 1862, <br /> <br />The defendant had obtained construction permits and <br />certain adjudicated water rights from the state of Oregon in <br />order to dam and divert water in the stream for a power <br />plant. The issue, therefore, ,.,as whether the homestead <br />patent carried "ith it common law '-later rights appurtanent <br />to riparian ownership. In holding that the patent did not <br />include such rights, the Court analyzed language in the <br />Desert Land Act of 1877 and stated: <br /> <br />"If this language is to be given its natural meaning... <br />it affected a severance of all waters upon the public <br />domain, not theretofore appropriated from the land <br />itself. From that premise, it follows that patent <br />issued thereafter for lands in a desert-land state <br />or territory, under any of the land laws of the United <br />States, carried with it of its own force, no common la" <br />right to the water flowing through or bordering upon <br />the lands conveyed." iQ.I <br /> <br />Furthermore the Court stated that: <br /> <br />"(F~ollowing the Act of 1877, if not before, all <br />non-navigable waters then a part of the public <br />domain became publici juris, subject to the plenary <br />control of the designated states, including those <br />since created out of the territories named, with a <br />right in each to determine for itself to what extent <br />the rule of appropriation or the common'law rule <br />in respect of riparian rights should obtain." <br />(emphasis added) QI <br /> <br />C. Reservation Doctrine <br /> <br />The holdings of the Supreme Court clearly indicate that <br />the reservation doctrine is an exception to the relinquish- <br />ment of plenary control over non-navigable western waters. <br />As the Court said in Winters v. United States: "The power of <br />the government to reserve the waters and exempt them from <br /> <br />iQ.I Id. at 158. <br />ill Id. at 163-164. <br /> <br />-10- <br />