| OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 431 based on the nature of the uses."1000 However, the court said, "It may be that ORS 540.140 still has viability as to rights which were perfected prior to 1909 or as to rights bearing the same effective date. Since neither is involved in the case at bar, we need not consider those possibilities here."1001 The court also said: ORS 536.210, et seq., enacted in 1955, establish a water resources board, direct it to develop comprehensive programs for conserving and augmenting water resources for all purposes, and outline factors to be considered by the board in formulating a water resources program. It is clear from a reading of these sections that it was not intended that they supersede the previously prescribed laws governing the issuance and priority of water rights certificates. In fact, ORS 536.320 specifically provides: "The board shall not have power: " * * # "(2) To modify, set aside or alter any existing right to use water or the priority of such use established under existing laws * * *. " * * * " The appropriative rights involved in the case were domestic use rights with 1947 priority dates and an irrigation right with a 1919 priority date. From its language quoted above, the court appears to have concluded that the 1955 preference provision did not apply to such previously existing appropriative rights. But the question of its possible application to later acquired rights appears to have been left unresolved. (3) A Utah statute contains a provision very similar to the above. It accords preferences in times of scarcity first to domestic purposes without unnecessary waste and second to agricultural purposes. The original version as enacted in 1880 contained a proviso that such preference should not be exercised to the injury of any vested right without just compensation. This was included in the 1903 water administration law, but without the requirement of compensa- tion.1002 "priorities of appropriation constitute a species of property in the proprietor which cannot be taken from him except by the right of eminent domain upon suitable compensation first assessed and tendered." In re Schollmeyer, 69 Oreg. 210, 215, 138 Pac. 211(1914). 1000Phillips v. Gardner, 469 Pac. (2d) 42, 44 (Oreg. App. 1970). The court added that "Although the 1909 Act did not directly state that priorities should be based on priority in time and not on nature of use, the whole thrust of the Act clearly indicates such a purpose." Id. The Court also said "The Act, § 73, provides 'All laws and parts of laws so far as in conflict or inconsistent with the provisions of this Act are hereby repealed.' "Id. at 43. 1001 Id. at 44. 1002 Utah Laws 1880, ch. 20, § 14, Laws 1903, ch. 100, § 54, Code Ann. § 73-3-21 (1968). |
