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001181 244 OREGON LAW REVIEW [Vol. 36 what is commonly known as "flood water," the spring runoff which fills all streams to the high-water mark for perhaps a month or more. Such a late-comer cannot acquire a water right which will sustain an irrigation economy on his land except in an exceptional year when the heavy runoff persists into the middle of the growing season, Such is the nature of the law of appropriation, Under such a rationale, wOllld it be reasonable to argue that the gov- ernment, not as a sovereign but merely as proprietor-and it professes to be no more so far as the Deschutes River is concerned-may assert the right to recapture rights which it had prior to settlement and the economy built up under its own land laws? To assert rights in the waters flowing past its land on the Deschutes is to assert property rights in the water, property rights which, according to the former views of the Supreme Court, were dedicated to the public. But can the government ever secure water rights under state laws? The answer is obvious: of course it may, but only to the extent permitted under the state laws to any other proprietoL Thus it has been held that the gov- ernment, as trustee for Indians on the Yakima Reservation in \Vash- ington state, might not claim a right to recapture waters of Ahtanum Creek bordering the reservation where the government had permitted the settlement of former Indian lands by white settlers who proceeded to acquire valuable water rights in that creek under the laws of that state.80 In the words of Judge Fee: The Acts of 1866, 1870 and 1877, which were aU later than the treaty [of 1855], evinced an intention to convey to those settlers on the public domain the right to appropriate waters of the Ahtanum which flowed through public lands and the south bank of which alone was on the reservation. These acts were so con~ strued, and the white settlers made appropriations which became appurtenant to their lands.,., These titles were confirmed by the act of admission of the state thirty years after the treaty without express reservation of these water rights and without limitation of the jurisdiction given to the state tribunals, If the United States owned land comprising a complete watershed, it cOllld thereafter still use the water upa>. any of its lands. But, if there were patentees beneficially using water from the stream, the government was bound in good faith to recognize its ow>> grants both of land and wateL 81 . " THE THREAT TO VESTED RIGHTS Is the use of stream flow for purposes of electric-power generation an approprialive use? Pelton Dam would impound waters of the De- schutes, so the question may be immateriaL Expressions in the Supreme Court opinion indicate, however, that the effect of the dam will not be 80 United States v. Ahtanum 1rrigation Dist.. 124 F, Supp, 818 (E.D, Wash, 1953), The decision was reversed by the Court of Appeals largely on the rationale of the Pelton decision, which had been handed down pending the appeal. Dis- cussion of the decision will appear later. Bt 124 F, Supp, at 834, (Emphasis added.)