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Show 218 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Oregon The interdoctrinal situation in this State is briefly referred to earlier under "Establishment of the Riparian Doctrine in the West-Status of the Riparian Doctrine in the West-Recognition in Varying Degree-Oregon." Judicial modification of the common law riparian doctrine in Oregon began in the last century and reached an important peak in the landmark case of Hough v. Porter in 1909-the year in which the legislative modification in the water code took place.274 The Oregon Supreme Court construed the Congressional Acts of 1866, 1870, and 1877275 as dedicating to the public all rights of the Government with respect to the waters and purposes named, and as abrogating the modified common law rules, except with respect to domestic purposes, so far as applicable to all public lands-not only desert lands-entered after March 3, 1877.276 The United States Supreme Court agreed.277 The water code of 1909 undertook to recognize and to limit the vested right of a riparian claimant who had actually applied water to beneficial use prior to the enactment, to the extent that it had not been abandoned for a continuous period of 2 years; to recognize a similar right with respect to uncompleted works if completed and the water devoted to beneficial use within a reasonable time thereafter; and to bring adjudication of such rights within the procedures newly set up in the statute. Validity of the water code with its provisions relating to riparian rights was sustained in both State and construction of the dam. The City does not contend here that its riparian rights are adversely affected by the District's prior appropriation. Its claim to the water in question is predicated solely on its asserted [but disallowed] ownership of the surface water originating in the watershed." Id. at 754. In its supplemental opinion on rehearing, the court said: "The City urges on rehearing that the law in effect before the 1963 amendment to our statutes [discussed above] invested it with a riparian right to the reasonable use of the stream waters in question." Id. at 755. But the court held that under the riparian doctrine the city's riparian status did not entitle it to abstract water for distribution to its inhabitants for domestic purposes. Hence, it appears that relatively little was expressly and clearly decided about the correlation of riparian and appropriative rights. There being no errors in law, the court affirmed the district court's judgment in which "The City was directed 'to forthwith release [from its Draper Lake reservoir] the average annual run-off of surface waters occurring north of * * * [the dam] within the watershed of East Elm Creek * * * impounded [there] as of October 1, 1966.'" Id. at 751. The district court's specific provisions regarding release of the water were not otherwise discussed by the Supreme Court. These provisions are discussed in Rarick, supra note 271, 23 Okla. Law Rev. at 69-70. 274Hough v. Porter, 51 Oreg. 318, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). Oreg. Laws 1909, ch. 216, Rev. Stat. ch. 539 (Supp. 1955). 27S14 Stat. 353, § 9; 16 Stat. 218; 19 Stat. 377, 43 U.S.C. § 321 (1964). 216Hough v. Porter, 51 Oreg. 318, 383-407, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 271California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 160-163 (1935). |