| OCR Text |
Show 494 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES things, that: The adjudication proceeding is principally for the purpose of determining rights initiated prior to the passage of the water code, February 24, 1909. * * * The water code enacted in 1909 provided that thereafter all water rights must be initiated by the filing of an application with the State Engineer and the securing of a permit to appropriate the water. Those having rights under such permits or under certificates issued by the State Engineer, may appear and file claims in the adjudication proceeding. By so doing they become eligible to contest claims of other parties to such proceeding. * * * * If you claim a right prior to February, 1909, failure to make an appearance in the adjudication proceeding and file proof of your claim will bar the subsequent assertion of a right by you.307 Constitutionality of the statutory adjudication procedure. -Decisions of both Federal and State courts have upheld the validity of the Oregon adjudication procedure as not violating the constitutional prohibition against denial of due process of law.308 In the Pacific Live Stock Company case, the United States Supreme Court pointed out that, proceedings before the State Water Board (now State Engineer) and the court are not independent or unrelated, but are parts of a single statutory proceeding, the earlier stages of which are before an administrative agency and the later ones before a judicial tribunal. The administrative agency merely paves the way for a court adjudication of all rights involved, its duties being much like those of a referee. "That the State, consistently with due process of law, may thus commit the preliminary proceedings to the board and the final hearing and adjudication to the court, is not debatable."309 Further, in the Court's view, use of the administrative report as evidence, which claimants might oppose with other evidence, does not violate due process; nor is the requirement that water be distributed 307 "Information Relative to Statement of Intention to File Claim In Connection With Adjudication of Water Rights" (no date), pp. 2-3. In the "Notice to Water Users" of the Santiam and South Santiam Rivers and their tributaries (excluding the North Santiam River and its tributaries) situated in Linn and Marion Counties, dated April 12, 1971, it was stated that: "The owners of land benefited by a permit or water right certificate acquired after February 24, 1909, are not required to enter this proceeding to maintain the use evidenced by the permit or cenificate. However, they must appear and file in this proceeding to become a party hereto in order to contest the claims of those exerting a right hereunder." 308Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 454 (1916), affirming 217 Fed. 95, 98 (D. Oreg. 1914); In re Hood River, 114 Oreg. 112, 162, 227 Pac. 1065 (1924); In re Willow Creek, 74 Oreg. 592, 620, 144 Pac. 505 (1914), 146 Pac. 475 (1915); Oregon Lumber Co. v. East Fork In. Dist., 80 Oreg. 568, 572-573, 157 Pac. 963 (1916). 309Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 451452 (1916). |
