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Show WHO MAY APPROPRIATE WATER 245 the result of repeated decisions of the supreme court. (See the prior discussion in chapter 6. See also chapter 10;) However, this court specifically held that a mere assertion of rights by appropriation is not antagonistic to and a waiver of rights arising out of riparian ownership.104 In a case in which plaintiffs based their rights to the use of water on three grounds-(1) riparian, (2) appropriation, and (3) contract-the supreme court held that the plaintiffs could not be forced to elect to rely on one cause only.105 Oregon.-A riparian owner in Oregon is as competent as anyone else to make an appropriation of water for use on his land, even though it is riparian land. In such case, he may claim a right to the use of the water either as a riparian owner or as an appropriator-but he cannot be both at once.106 A reason for the foregoing principle is that one cannot at the same time hold title to the same thing both as a tenant in common and in severalty.107 To segregate a fixed quantity of water from the whole flow of a stream as it passes one's land and to appropriate such quantity to his exclusive use, said the Oregon Supreme Court, is to destroy one of the essential characteristics of riparian use considered as a tenancy in common. Hence, one who does this abandons the role of a riparian owner and assumes that of a tenant in severalty. Assumption of one of these claims is abandonment of the other.108 The profound effect of his principle on the development of Oregon water law has been considered elsewhere by this author.109 Governmental Agencies and Entities Other than Districts110 Municipality The general situation in the West. -Municipalities occupy a unique place in the water appropriation philosophy of the West. Their identity with early development of water resources in various regions was close. For example, special studies in two of them show: (1) The community acequias in the Southwest, notably in what is now New Mexico, provided not only irrigation water for the lands of the members, but domestic water for their closely grouped homes as well. (2) After towns were incorporated in the settlement of Utah, many of their local councils took control of the water supply ditches and operated and maintained them for long periods of time, until they finally ^Nesalhous v. Walker, 45 Wash. 621, 626, 88 Pac. 1032 (1907). 10SHutchinson v. Mt. Vernon Water & Power Co., 49 Wash. 469, 472, 95 Pac. 1023 (1908). 106State ex rel. Pacific Livestock Co. v. Davis, 116 Oreg. 232, 236, 240 Pac. 882 (1925). lvtCaviness v. La Grande Irr. Co., 60 Oreg. 410, 421424, 119 Pac. 731 (1911). 10*Bowen v. Spalding, 63 Oreg. 392, 395,128 Pac. 37 (1912). 109Hutchins, Wells A., "The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification," 36 Oreg. Law Rev. 193, 200-201, 212-220 (1957). ""Districts are considered above under "Nongovernmental Applicants-Person" and "Group Organizations." |
