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Show THE RIPARIAN RIGHT 137 There apparently has not been a direct holding in Oregon regarding a grant to use water on nonriparian land and some seemingly inconsistent language has been employed in some cases. The Oregon Supreme Court, in a 1959 case, said, "Although there is a conflict of authority as to whether the grant to a nonriparian owner of the riparian owner's rights is effective as against other riparian owners ... it is clear that as between the parties to the conveyance the grantor is bound by his grant."712 It was unnecessary to, and the court apparently did not, decide the question of the effect of such a grant as against other riparians. The court at one point said:713 Our cases recognize that riparian rights may be conveyed to a nonriparian owner. Coquille Mill & Mercantile Co. v. Johnson, 1903, 52 Or. 547, 98 P. 132; Morton v. Oregon Short Line R. Co., 1906, 48 Or. 444, 87 P. 151, 87 P. 1046, 7 L.R.A.,N.S., 344, 120 Am. St. Rep. 827; Montgomery v. Shaver, 1901,40 Or. 244, 66 P. 923; Curtis v. La Grande Hydraulic Water Co., 1890, 20 Or. 34, 23 P. 808, 25 P. 378, 10 L.R.A. 484; cf., Norwood v. Eastern Oregon Land Co., 1924,112 Or. 106,227 P. 1111. This statement is probably dictum, however, as the facts described by the court do not indicate there was any grant to a nonriparian owner involved in the case.714 In addition, it should be noted that the first three cases cited by the court related to the conveyance of rights to erect wharves or other structures in a watercourse, not to take water for use on nonriparian land. The fourth case the court cited involved the damming of water for the water supply of a town, but the case was governed by contractual agreements binding upon the parties and did not deal with the question of effects on third persons, nor the question of nonriparian use. Note that after citing these four cases the court added "cf., Norwood v. Eastern Oregon Land Co., 1924, 112 Or. 106, 227 P. 11.11." In that case, the court had said that the riparian right is purely local, inseparably among other things, undertakes to limit unused riparian rights to domestic use, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-Oklahoma." ll2Fitzstephensv. Watson, 218 Oreg. 185, 344 Pac. (2d) 221, 228 (1959). 713344Pac. (2d)at229. 714 The facts showed that the grant from Davies to Mairs of the dominant tract and the water right was not to a nonriparian owner, for the dominant tract was not only carved out of the original riparian tract but itself remained riparian. "This [dominant] tract was bounded on the west by the creek described above." 344 Pac. (2d) at 224. It is true that the eastern part of the dominant tract was later sold to plaintiff, so that this part no longer had contact with the creek; but the court apparently felt that severance of contact of plaintiffs land from the stream after the easement was acquired had no effect thereon, for it adjudicated his water right as a riparian right transferred to land that the statement of facts showed to have been then riparian, which right was protected as against the grantor and his successors by a perpetual easement in the servient tract. |
