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Show INTERRELATIONSHIPS OF THE DUAL WATER RIGHTS SYSTEMS 219 Federal courts.278 The act was construed as having validly abrogated the common law riparian rule as to "continuous flow" of a stream except where the water had been actually applied to beneficial use.279 The United States Supreme Court held that after enactment of the Desert Land Act of 1877, a patent issued for land in any desert land State or Territory carried with it of its own force, no common law right to water flowing through or by the land conveyed; and that following that enactment, if not before, the States to which the act applied had the right to determine for themselves to what extent the appropriation or riparian rule should obtain within their boundaries. However, the Court expressed no opinion as to whether the common law right in controversy in Oregon had been validly modified by the State legislation as construed by the State supreme court.280 The measure of a vested riparian right in Oregon as against an appropriator is actual application of water to beneficial use prior to passage of the "water code" or shortly thereafter.281 One who asks for an adjudication of a claimed riparian right, but for a specific quantity of water and a fixed date of beginning use, assumes the character of an appropriator and waives his riparian claims for the purpose of such adjudication. As a matter of fact, water rights determined and decreed in the Oregon statutory adjudication proceedings have been based almost entirely-but not quite-on actual appropriation and use. Although the riparian doctrine in Oregon is sometimes said to be now little more than a legal fiction, a 1959 decision of the supreme court discloses that the doctrine still has some substance. Although admittedly very little vestige of the doctrine remains in this State insofar as it may be asserted against those who base their claims to use of water on priority of appropriation under the "water code," occasionally riparian rights are still recognized in statutory adjudication proceedings. It is not correct to say, according to the supreme court, that the statutory system of appropriation abrogates the riparian doctrine in Oregon. Rather, the statute is a modification only of the law of riparian proprietorship. Unless under the circumstances of the particular case the "water code" is controlling, such a riparian right is a right of private property which will be protected under well-recognized principles of real property law.282 278/« re Willow Creek, 74 Oreg. 592, 610-620, 625-628, 144 Pac. 505 (1914), 146 Pac. 475 (1915). 279In re Hood River, 114 Oreg. 112, 173-182, 227 Pac. 1065 (1924), vote of 4 to 3; California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562-569 (9th Cir. 1934), vote of 2 to 1. 380California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 155-165 (1935). 81 For a discussion of questions regarding riparian rights for domestic and stockwatering purposes, see Hutchins, Wells A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification," 36 Oreg. L. Rev. 193, 218-219 (1957). See above at note 170. 282Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). |