§ 508. Riparian Rights in Oregon.-Riparian rights are recognized and protected in the State of Oregon subject to the right of eminent domain. The Act of 1891 expressly recognizes in Sec. 81 the common law riparian rights, but also provides that they may be taken by condemnation proceedings by virtue of the right of eminent domain.

These rights are sustained also by a long line of authorities of the Supreme Court. In the early case of the Oregon Iron Co. vs. Trullenger the Court held that the right to use water necessarily implies a right to dam and detain it. exercising this right can only detain it. He cannot divert it.

Also, in the case of Taylor vs. Welch,3 the Court held that the same rule applies to water which flows in a well-defined and constant stream in a subterranean channel, but not to water percolating through the soil, or even flowing through an unknown and undefined channel.

In Shively vs. Hume1 the Court sustained the opinion in Taylor vs. Welch, and added: "But it may be added that it need not be shown that a stream of water flows continually, it may at times be dry, but it must have a well-defined and substantial existence." 5

1 See ante Sec. 499.

23 Oregon, I.

36 Oregon, 199. 4 10 Oregon, 76.

5 See also Weiss vs. Oregon I. & S. Co., 13 Oregon, 496; 11 Pac. Rep. 255; Kaler vs. Campbell, 13 Ore. 596; 11 Pac. Rep. 301; McCann vs. Oreg. Ry. Co., 13 Oreg. 455; 11 Pac. Rep. 236.

Moore vs. Willamette T. & L. Co., 7 Oreg. 355, where the Court held that riparian rights extend laterally into the stream, but do not extend up and down the

stream.

See also Shook vs. Colohan, 12 Oreg. 239; 6 Pac. Rep. 503.

I. Subject Treated in General.

§ 509. Particular Features of State.-The topography of Idaho, in its broad features, consists of a great range of mountains extending in a northwesterly and southeasterly direction, and sending off spurs toward the west. The rivers which flow from the high mountains of the west on reaching the plains have cut for themselves deep channels, and often disappear into narrow gorges or deep canyons, continuing on their way to the sea at a depth from two hundred to five hundred feet or more beneath the general level of the plains. This condition of things offers an obstacle to the complete agricultural development of the State, which can only be overcome by the exercise of great engineering feats. The water supply of Idaho is large, but unfortunately the peculiarities of the topography of the State render it impossible to utilize the whole of the water, since a large portion of it is below the general level of agricultural lands. The Great Plains, consisting for the most part of lava, contain in the

aggregate many hundreds of thousands of acres of land which by the application of water may be rendered wonderfully productive.

§ 510. Irrigation in State.-From the fact that considerable capital is required to divert the waters of the principal rivers of the State from their deep channels, the irrigators in the past have been confined almost exclusively to those localities where streams of moderate size flow from the foot hills into the valleys. Here small ditches have been dug running for a few miles along the river as far away from it as the contour of the ground will allow. The early settlers usually constructed very small ditches, which increased in size with the population. The methods of agriculture in the State and the practice of irrigation are governed to a certain extent by the distribution of the rainfall. But a great deal of the water throughout the State is already taken up, and water storage is becoming of the utmost importance. Enterprises are being projected for utilizing the waters of the large rivers by bringing them out upon the high plains through which they flow.

II. General Statutory Enactments.

§ 511. Water Rights in General.-On February 10, 1881, there was approved an Act governing water rights in general, which has been embodied in the revised statutes of Idaho.1

Secs. 3155 to 3167 provide that a right-of-way may be acquired by appropriation for beneficial purposes; that the point of diversion may be changed; that water may be turned into and be conveyed by the natural channels; that as between appropriators the one first in time is the first in right; that notice of appropriation must be posted in a conspicuous place at the point of intended diversion, and be recorded in the office of the Recorder of the county in which it is posted; that within sixty days after posting notice the claimant must commence the construction of the works to divert the water, and "must prosecute the work diligently and uninter

1 Rev. Stat. Idaho, 1887, Sec. 3155-3205.

ruptedly to completion, unless temporarily interrupted by snow or rain; " that by "completion" is meant conducting the water to place of intended use; that by compliance with the above rules the right to use the water relates back to the time the notice was posted, but a failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith, except that "all ditches, canals and other works heretofore made, constructed or provided, by means of which waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed, to the extent of the quantity of which said. works are capable of conducting and not exceeding the quantity claimed, without regard to or compliance with the requirements of this chapter."

Construction of

§ 512. Same.- Prior Appropriation. above Statutes.-It is held by the Supreme Court of Idaho, relative to the provision of the statute, "as between appropriators, the one first in time is the first in right," that the prior appropriation of all the waters of a stream applied to a useful purpose gives the better right to the tributaries and all direct and immediate sources of supply of the stream; and when this right by appropriation has once vested it must be protected and upheld.1 The Court also construed this section of the statutes in question in the case of Hilman vs. Hardwick 2 as meaning that one who with his grantors first appropriated all the waters of a certain stream and has continually used the same to irrigate the lands owned by him is entitled to all of the waters to the extent of his appropriation, necessary to the proper irrigation of his lands as against all subsequent appropriators.3

Upon the question of reasonable diligence it was held in the case of Conant vs. Jones that appropriators of water for

1 Malad Valley Irr. Co. vs. Campbell, (Idaho) 18 Pac. Rep. 52. 2 (Idaho.) 28 Pac. Rep. 438. 3 See also Kirk vs. Bartholomew, (Idaho) 29 Pac. Rep. 40; Gearson

4

vs. Barrack, (Idaho) 29 Pac. Rep. 42; Drake vs. Earhart, (Idaho) 23 Pac. Rep. 541.

+(Idaho.) 32 Pac. Rep. 250.

irrigation purposes, after completing their works for diversion and conducting the water to the point of intended use, have a reasonable time in which to apply it; that they may add to the acreage of cultivated land from year to year and apply the same as their necessities demand or as their abilities may permit until they have put to beneficial use all the water to the full extent of their appropriation.

§ 513. Right of Way for Ditches.-Secs. 3180 to 3190 provide: All persons, companies and corporations owning or claiming any land situated on the bank or in the vicinity of any stream are entitled to the use of waters of such stream for the purpose of irrigating the land so held or claimed to be held.

They also provide that owners of land are entitled to a right-of-way through the lands of others for their ditches constructed for the purpose of irrigation. Condemnation proceedings are provided in case the ditch-owners and the landowners cannot agree upon the compensation to the landowners for this right of way, that a petition must be presented to the County Commissioners setting up the facts, after which appraisers of the land are to be appointed by the Commissioners, who shall hear the proofs in the premises and certify the compensation which in their judgment is just and proper. Such certificate must then be recorded in the office of the County Recorder, and "upon the payment of the compensation and damages, if any, or the tender thereof to the proper parties, or in the absence thereof of such parties from the county then upon deposit of the amount in the county treasury to the credit of the said party, the person, company or corporation, petitioners, have the right of entry upon and of way for the proposed ditch, canal or other works." They provide that the ditches must be kept in good repair; that prior rights must not be injured or impaired; that the owners of such ditches must furnish water to customers upon the payment of the usual and customary rates for the use of the water; that no person is entitled under any circumstances to use more water than good husbandry requires for the crop that he