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Show 98 THE RIPARIAN DOCTRINE Others involved in the cited Oregon cases, besides the riparian claimants, were claiming appropriative rights. Both of the cited Oregon cases dealt with claimed riparian rights for water power uses initiated prior to the 1909 Oregon water code.513 That code recognizes and protects, as "vested rights" of a riparian proprietor, his water use "to the extent of the actual application to beneficial use" shortly before or, in some cases, after its enactment, as discussed above under "Cutoff dates."514 Although the court did not expressly so state, the implication of these opinions apparently is that no specific amount may be claimed as a riparian right, even to the extent of such prior beneficial use, under the Oregon statutory adjudication procedure. Any specific quantity apparently must be claimed thereunder as an "appropriative right."515 In a South Dakota case, however, the supreme court allowed an award of a specific amount of irrigation water (100 miner's inches) to a riparian who was deemed to have a right superior to a competing appropriative right, where the riparian land had been settled before the 1881 appropriation act.516 For this amount of horsepower, and it also provided for the issuance of a certificate setting forth the "priority of the date, extent, and purpose of the right." The court referred to a question of counsel as to how the extent of the right could be specified n no quantity of water could be mentioned in the proceedings without forfeiting the right. In this regard the court said, "The only answer that we think of to this question is that the quantity of water to which the claimant is entitled under the date of relative priority and the purposes for which it is intended to be used, should be specified as it has been specified in our former memorandum, and no doubt will be, when the time arrives, specified in the certificate of the state engineer, pursuant to the decree of this court. Therefore, as heretofore mentioned, we concluded that the claim of this power company was, in substance, that of an appropriator. We still adhere to that opinion." 134 Oreg. at 705-706. But see note 510 supra, regarding the effect of contractual agreements as construed in Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). See also California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 558, 569 (9th Cir. 1934), affirmed in other respects, 295 U.S. 142,165 (1935). sl3In re Hood River, 114 Oreg. 112, 227 Pac. 1065,1081 (1924);/n re Deschutes River & Tributaries, 134 Oreg. 623, 286 Pac. 563, 584-585 (1930). sl4Oreg. Rev. Stat. § 539.010 (Supp. 1955). See also note 454 supra, regarding Texas and Washington legislation. slsThe provision of the 1909 water code regarding vested rights of riparian proprietors was not mentioned by the supreme court in the Deschutes case, but it was discussed in the Hood case. Although the court did not expressly so state, its language apparently implies the above proposition. In re Hood River, 114 Oreg. 112, 227 Pac. 1065,1081, 1084 (1924). See Hutchins, W. A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification," 36 Oreg. Law Rev. 193, 207, 212, 219 (1957). 516Lone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 128 N.W. 596 (1910). The court said with respect to the riparian's award of 100 inches as against the competing appropriative right: ". .. there were no findings whatever giving the amount of water flowing down the stream, or the number of persons holding riparian rights along said stream, and nothing whatever upon which it would be possible for the court to base a finding as to what would be a reasonable use of water by Jolly, taking into |
