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Show 174 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES The question whether the desert land legislation was limited to desert lands was not decided by the United States Supreme Court until 1935, after the high courts of four States had divided equally on the matter. In 1909, in Hough v. Porter, the Oregon Supreme Court expressed the opinion that all public lands settled upon after the enactment of that legislation were accepted with the implied understanding that, except for domestic use, the first appropriator should have the superior right.70 The Washington court, in a decision rendered in 1911, refused to follow the lead of Oregon, and held that the Desert Land Act related to the reclamation of desert lands only; and it reaffirmed the principle in 1914.71 In 1921, the South Dakota Supreme Court expressly adopted the principle as stated in Hough v. Porter, stating that the reasoning in the opinion in that case was so lucid and convincing that it felt justified in resting its ruling thereon.72 But in the following year, the California court declined to adopt the Oregon construction and held that the Desert Land Act did not affect other than desert lands.73 The question was settled by the United States Supreme Court in 1935 in the California Oregon Power Company case, wherein it was held that the Desert Land Act applied to all the public domain in the States and Territories named, and that it severed the water from the public lands and left the unappropriated waters of nonnavigable sources open to appropriation by the public under the laws of the several States and Territories.74 This case, arising in Oregon, concerned the right of an owner of riparian lands-which had been acquired in 1885 by a predecessor in interest by patent under the Homestead Act of 1862-who had never diverted water for beneficial use nor sought to make an appropriation thereof, to enjoin an appropriator the water rights claims of which were based upon adjudicated rights and permits from the State. The Supreme Court referred to the decisions from the four States noted above, and said that the decision of the Oregon court in Hough v. Porter was well reasoned and reached the right conclusion, whereas to accept the view of the Washington and California courts would be, in large measure, to subvert the policy Congress had in mind to further the disposition and settlement of the public domain. The language in the Desert Land Act, the court said, applied not only to desert land entries but to entries under other land laws as well. The expressions of the Supreme Court as to the impact of the Desert Land Act upon the doctrine of riparian water rights are considered in Chapter 10. 70Hough v. Porter, 51 Oreg. 318, 383-399, 404-406, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 71 Still v. Palouse In. & Power Co., 64 Wash. 606, 612, 117 Pac. 466 (1911); Bemot v. Morrison, 81 Wash. 538, 559-560, 143 Pac. 104 (1914). 72 Cook v. Evans, 45 S. Dak. 31, 38-39, 185 N. W. 262 (1921). 13San Joaquin & Kings River Canal & In. Co. v. Worswick, 187 Cal. 674, 690, 203 Pac. 999 (1922). "We think the conclusion of the Washington Supreme Court was correct." 14 California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 160-163 (1935). |