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Show THE RIPARIAN RIGHT 97 criteria for determining such reasonableness, discussed later under "Unused riparian right." Apportionment among riparians and appropriated-The problem of appor- tioning water among riparian claimants, in view of the imprecise nature of their reasonable use rights and related factors, is discussed earlier under "As Against Other Riparian Proprietors-Determining the quantity of water." In a series of cases, the Oregon Supreme Court emphasized the difficulties of making an equitable apportionment inherent in character differences between appropriative and riparian rights-the former contemplating a tenancy in severalty, the latter analogous to a tenancy in common.509 And the principle was established-and it was reiterated in many court opinions-that a riparian proprietor who claims a right to use of water both as a riparian proprietor and as an appropriator must choose between them.510 The Oregon court said that by reason of the fact that the riparian rights doctrine does not provide for a fixed quantity of water to be apportioned to different persons or different tracts of land, that rule "cannot be worked out or applied" under the statutory procedure provided for in the 1909 Oregon water code in adjudicating the relative rights of claimants to use water of a stream system.511 Therefore, in the adjudication of rights to the Deschutes River system, the supreme court held that a claim denominated as "a riparian right," but which asked for a decree of a specific quantity of water for use in the future, "was, in substance, that of an appropriator." The so-called claim of "riparian right" was actually adjudicated with a date of priority and for a definite quantity of water-in other words, on a basis of prior appropriation.512 509Hough v. Porter, 51 Oreg. 318, 380, 95 Pac. 732 (1908), 98 Pac. 1083, 102 Pac. 728 (1909); Caviness v. La Grande Irr. Co., 60 Oreg. 410, 421422, 119 Pac. 731 (1911). See also Jones v. Conn, 39 Oreg. 30, 37, 46, 64 Pac. 855, 65 Pac. 1068 (1901). 510 Williams v. Altnow, 51 Oreg. 275, 300, 95 Pac. 200, 97 Pac. 539 (1908). "He may be one or the other, but he cannot be both at once." State ex rel. Pac. Livestock Co. v. Davis, 116 Oreg. 232, 236, 240 Pac. 882 (1925). But in a 1959 case the court appears to have held that grantees of riparian land burdened with a contractual agreement could assert no conflicting rights, as against this agreement, on the strength of an appropriative-rights permit they had subsequently obtained. Fitzstephens v. Watson, 218 Oreg. 185, 226-229, 344 Pac. (2d) 221 (1959). Hence, they apparently had no option to assert conflicting appropriative rights as against such contractual rights. In a 1930 case, the California Supreme Court said that "the riparian right is in its nature a tenancy in common and not a separate or severable estate. The moment a right in a natural stream is specifically defined in a concrete inflexible amount, at that moment the right becomes one of priority and not riparian." Seneca Consol Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 220, 287 Pac. 93 (1930). In this respect, the court did not discuss a 1927 case and some earlier California cases, discussed at note 457 supra, which did not go this far. 511 In re Hood River, 114 Oreg. 112,162, 227 Pac. 1065 (1924). s"In re Deschutes River & Tributaries, 134 Oreg. 623, 692-693, 703-706, 286 Pac. 563, 294 Pac. 1049 (1930). In the Deschutes case, the court noted that the applicable statute, among other things, required a fee to be based, for water power purposes (involved here), on the |
