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Show WALLA WALLA RIVER LITIGATION 783 A priority once acquired or put in course of acquisition by the post- ing of a notice may be lost to the claimant by abandonment or laches. There must be no waste in arid lands of the "treasure" of a river. New Jersey v. New York, 283 U. S. 336, 342. The essence of the doctrine of prior appropriation is beneficial use, not a stale or barren claim. Only diligence and good faith will keep the privilege alive. [Citing cases.] 3 When these are shown to be lacking, the water right will fail, or fail to the extent that equity requires. Such according to the Master has been the fate of the Gardena filing. True a court in Washington deter- mined in 1928 that the priority was to be recognized as of 1892. The decree was of no force against Oregon or Oregon appropriators not parties to the suit. United States v. Oregon, 295 U.S. 1, 12; Priest v. Las Vegas, 232 U. S. 604. As to them priority has lapsed, if the claim- ant had forfeited it by inequitable conduct. The label of the acts is unimportant, whether laches or estoppel or abandonment. What mat- ters is their quality. Persistence in such conduct may extinguish the equitable right. It may bar an equitable remedy. Irrigators in another state, unaffected by the decree, are at liberty to show the facts, and upon the basis of that showing to fix their user of the stream. Laches and abandonment, chargeable to the Gardena users, are found in the report. Not till 1930 was there a claim in their behalf to the beneficial use of the waters of the river arising above the bridge. Not till then was such a claim advanced by Washington itself or by any of its residents. Without a sign of challenge the Oregon users were al- lowed to develop their little settlement in the faith that their enjoyment of the waters was uncontested by any one. During these many years of growth Gardena Farms in particular evinced by many acts its recognition and acceptance of the existing situation. These acts are narrated carefully in the findings of the Master. There is no need to repeat them here. Viewing them collectively he concludes that the Gardena Farms District has never put the waters of the river arising above Red Bridge to a beneficial use during the irrigation season; that the intention to apply them to such a use was abandoned, if it ever existed, before the commencement of this suit; and that for a period of nearly forty years there has been recognition of the superior right of the Oregon appropriators. Here surely is not the diligence that equity exacts of the suitor who invokes its distinctive jurisdiction. We have dwelt upon the question of abandonment, for it has been much considered in the report and in the arguments of counsel. In so doing we have not meant to hold that in the absence of abandonment there would be an inequitable apportionment calling for relief by in- junction, unless indeed the flow of the stream should unexpectedly increase. We are to bear in mind steadily that the controversy is be- tween states, and not between private litigants, the burden and quan- tum of the proof being governed accordingly. North Dakota v. Min- nesota, supra. At present there would be no benefit to Gardena, or none that has been proved, if the water of the Tum-a-lum were not ob- structed by the dam. In all likelihood they would be lost in the deep gravel of the channel and would not reappear beyond until the shortage season had gone by. So also, there would be no benefit, or none that has 3 See Kinney Irrigation and Water Rights, 2d ed., vol. 2. pp. 1978, 1988, 2004, and Wiel, Water Rights in the Western States, 3d ed., vol. I, §§ 371, 567 et seq., collecting the decisions. |
