<br />OIJl17 8
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<br />1957]
<br />
<br />THE PELTON DECISION
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<br />241
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<br />to "public lands" since it was public lands that were open to settle-
<br />ment, it nevertheless, as more and more public domain came to be re-
<br />served for one purpose or the other-forests, military enclaves, Indian.
<br />lands-promptly and widely recognized the rights of settlers on the 1\
<br />public lands to enter upon the reserved lands for the purpose of secur-
<br />ing access to flowing water, for reservoir land on which to store the
<br />precious stuff, and for miscellaneous strips and blocks of land on
<br />which to build the many works necessary for their economy-head-
<br />gates, diversion dams, canals, flumes, ditches.
<br />Thus it must appear, in looking at this process over the years from
<br />the 1850's onward, that there was no disposition to retain the right to
<br />the waters flowing on these lands, reserved or public. Hough v. Porter
<br />boldly asserted the complete supremacy of the appropriative doctrine
<br />after the act of 1877, whether for desert-land entries, homestead entries,
<br />or entries under the old pre-emption laws, Hough v. Porter postulated
<br />that no riparian right was valid as against a valid subsequent appro-
<br />priator except where the riparian had, prior to the passage of the 1877
<br />act, validly asserted a claim to riparian waters, And such a claim, it was
<br />made clear, was not validly asserted by mere settlement on the banks
<br />of the stream, Use was the standard.
<br />Hough v, Porter was by no means universally approved, Two states
<br />expressly disavowed it.70 One other state, South Dakota, supported the
<br />Oregon view,71 Thus the way was paved for a far-reaching decision
<br />by the United States Supreme CourL The decision, California Oregon
<br />Power Co. v, Beaver Portland Cement Co" reviewed Federal policy and
<br />established definitely the effect of the acts of 1866, 1870, and 1877.72
<br />Plaintiff, asserting rights as a riparian owner of lands on Oregon's
<br />Rogue River, sought to have defendant enjoined from using the waters
<br />thereof to such an extent as to lower the level of the river as it passed
<br />through plaintiff's property. The injunction was denied, but the trial
<br />court held that, when plaintiff's predecessor acquired title in 1885 under
<br />a homestead patent, the riparian rights did attach to the property. But
<br />the court went on to hold, secondly, that Oregon's water code of 190973
<br />was an exercise of the state's police power and as such operated to
<br />modify the pre-existing riparian righL The Supreme Court, however,
<br />upheld the dismissal, not on the basis of the state-exercised police
<br />power as contained in the water code of 1909, but on the broad ground
<br />that, after the act of 1877, patents, whether on desert-land entries,
<br />homestead entries, or other entries, encompassed no common-law right
<br />
<br />70 Washington and California: Still v. Palouse, 64 Wash, 606, 117 Pac, 466
<br />(1911) ; San Joaquin & KR Canal Co. v. Wars wick, 187 Ca\. 674, 203 Pac, 999
<br />(1922) ,
<br />71 Cook v. Evans, 45 S.D, 31, 185 N,W. 262 (1921).
<br />72 295 D,S, 142 (1935),
<br />73 OR. REV, STAT. c, 537 (l9S5) ,
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