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Show 12 THE RIPARIAN DOCTRINE copied from Dakota Territorial statute of 1866, (b) by State supreme court in 1908 and 1933. (c) By statute in 1963, the legislature undertook to restrict the exercise of unused riparian rights to domestic purposes, with protection accorded previous beneficial uses made under various circumstances, and all stream- flow in excess of the foregoing becoming water subject to appropriation, (d) In a 1968 case, the court held the 1963 legislation did not apply to previously vested rights, although it retroactively eliminated certain procedural requirements in pre- vious appropriation statutes.51 Status: Riparian doctrine recog- nized by both legislature and supreme court, but in 1963 the legislature undertook to restrict exercise of unused riparian rights to domestic purposes, with protection accorded to previous beneficial uses made under various circumstances, and all excess streamflow being subject to appropriation. This legislation held not to apply to vested rights. Oregon (a) Riparian doctrine recognized by supreme court in 1876, (b) expounded more fully in 1886, and (c) generally recognized in many court decisions in which it was progressively modified, (d) Legislature in 1909 generally limited vested riparian rights to beneficial use prior to enactment or, if works were then under construction, within a reasonable time thereafter, (e) Constitu- tionality of legislative restrictions upheld by State and Federal courts." Status: The common law riparian doctrine received early recognition in Oregon, but over the years it suffered legislative and progressive judicial modification. The sweeping results have not brought abrogation of the doctrine, but they leave little vestige 51 (a) Terr. Okla. Stat. 1890, § 4162; Ten. Dak. Laws 1865-1866, ch. 1, § 256. (b) Chicago, R. I. & P. Ry. v. Groves, 20 Okla. 101, 111, 93 Pac. 755 (1908);Broody v. Furray, 163 Okla. 204, 205, 21 Pac. (2d) 770 (1933). (c) Okla. Laws 1963, ch. 205, Stat. Ann. tit. 60, § 60 (Supp. 1970) and tit. 82, § 1-A (1970). (d) Oklahoma Water Resources Bd. v. Central Okla. Master Conservancy Dist., 464 Pac. (2d) 748 (Okla. 1968). "(a) Taylor v. Welch, 6 Oreg. 198, 200 (1876). (b) Weiss v. Oregon Iron & Steel Co., 13 Oreg. 496, 498-502, 11 Pac. 255 (1886). (c) Hutchins, W. A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification," 36 Oreg. Law Rev. 193 (1957). (d) Oreg. Laws 1909, ch. 216, Rev. Stat. § 539.010 (Supp. 1955). Regarding domestic and stockwatering uses, see Hutchins, supra at 218-219. (e) In re Willow Creek, 74 Oreg. 592, 610-620, 625-628, 144 Pac. 505 (1914), 146 Pac. 475 (1915); In re Hood River, 114 Oreg. 112, 173-182, 227 Pac. 1065 (1924); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562-569 (9th Cir. 1934). The United States Supreme Court affirmed the decree of the Court of Appeals in this Federal case, but expressed no opinion as to whether the common law right had been validly modified by State legislation as construed by the State supreme court. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155-165 (1935). Present status as modified by the water code, FitzStephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). |
