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Show WATERS SUBJECT TO APPROPRIATION 227 WATERS SUBJECT TO APPROPRIATION In the development of the appropriation doctrine in the Western States, diversions of water for mining, domestic, and irrigation purposes were commonly made from "streams"-watercourses and their tributary creeks and springs. Western water law developed chiefly with respect to these sources. For example, the California Civil Code of 1872, which was the inspiration for many other early western water statutes, authorized acquisition by appropriation of the right to use water flowing in a river or stream or down a canyon or ravine.3 "The secret, changeable, and uncontrollable character of underground water" which, according to a Vermont court more than a century ago, "sometimes rises to a great height, and sometimes moves in collateral directions, by some secret influences, beyond our comprehension,"4 kept the law of rights to the use of percolating ground water within the domain of landownership, well away from prior appropriation, throughout decades in which a large volume of statutory and case law was being developed respecting the appropriation doctrine. Then, as the appropriative principle was eventually applied to percolating ground water in one western jurisdiction after another, statutory authorizations were either added to existing laws by amendment and enlargement, or were granted in separate enactments. As a result of these several developments, statutory declarations of appropriable waters (1) came to relate simply to all waters in the jurisdiction, or (2) were made in the form of classifications, or (3) in other instances were applied separately to surface waters and to ground waters. Classifications made in the current statutes with respect to appropriable waters are noted below. Some statutes specifically carry the provison that they are subject to vested rights, or its equivalent. Others omit such a limitation which, in view of well-known constitutional requirements, would apply whether or not the legislature mentions it. Statutory Declarations Nearly all the water appropriation statutes of the Western States specify either all waters, or classes of waters, that are subject to appropriation in accordance with the express legislative provisions. All Waters In Oregon, all waters within the State are subject to appropriation for beneficial use, although certain waters are specifically withdrawn from appropriation for scenic and other public welfare purposes by the legislature.5 3Cal.Civ. Code § 1410 (1872). 4Chatfield v. Wilson, 28 Vt. 49, 54 (1855). 5Oreg. Rev. Stat. § 537.120 (Supp. 1969) and ch. 538 (Supp. 1967). |