Laserfiche WebLink
<br />OIJl17 8 <br /> <br />1957] <br /> <br />THE PELTON DECISION <br /> <br />241 <br /> <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) , <br />