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0011-73 236 OREGON LAW REVIEW [Vol. 36 Grande and Gutierres decisions, as to a possible reservation of some water rights on government lands for the beneficial use by the govern- ment itself.53 THE "RESERVED" LANDS FALLACY 'c As has been seen, the effect of this long governmental policy, im- plemented by decisions of the Supreme Court of the United States, is avoided in the Pelton case by the simple expedient of confining the 1866 and other acts, together with the court decisions, to '~lic,laurls" and not to "reserved lands,"54 To sustain the validity of this argument re- quires spme examination into these enactments and decisions-an ex- amination which, regrettably, the court did not see fit to make. The argument proceeds on the theory that, since the various statutes pertained to "public lands," i,e" public domain which was open to home- stead as contrasted with government land in some other category, such as, for instance, a military reservation, the rules set up did not apply to the "reserved" lands, Briefly, the fallacy can be shown on logical and historical grounds as follows: ( I) The acts of 1866 and later did not purport to dispose of water other than by permitting patentees to secure water rights under local law. Thus water rights as such were not the subject of conveyance to anyone-and, that being so, no purpose would have been served in those acts by making reference to "reserved lands," 53 Any lingering doubts as to the government's claims on its own land border- ing nonnavigable streams had been removed in Oregon, at least as early as 1896. In Nevada Ditch Co, v. Bennett, decided that year (30 Or, 59, 45 Pac. 472), the Oregon court ruled in favor ot an appropriator in a contest with a subsequent patentee of government land'which had formerly been part of an Indian reserva- tion, The court held that, though the government had previously diverted water for irrigation purposes onto the reservation, this was a "governmental purpose" and the patentee did not take the land with these governmental rights appurte- nant. The following language is. significant : "In the Pacific Coast states Congress has recognized the privilege of private citizens to acquire usufructuary interests in the waters of public streams, independent of riparian ownershipo This is but one way. however, of di$posing of the public domain. A new and peculiar right is carved out of it, and settled upon private persons, either in their individual or corporate capacity. Now, if such an estate may be carved out of the public domain for an individual, it may be reserved by the general government, but the waters of non-navigable streams are part of such public domain, and hence the property of the government, which may lay hold of and use them, without taking any of the steps made necessary to obtain an usufructuary interest therein by private individuals. But if it 'Would prevcat individuals from acquiring 10nterests by prior a.ppropriatiol1-. it would seem that there should be a reservatioH. made of such waters either bv act of Congress or somc executive ordero Such has not been the case here," 30 Or. at 104-05, 45 Pac. at 484-85, The definitive pronouncement on the 1877 act came in the Califomia Orego>! Po'wer Co. case, to be discussed below (see pp, 241-43), 54349 V,S. at 443-44,