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Show THE RIPARIAN RIGHT 19 A quarter-century before the California Oregon Power Company decision was rendered, the Oregon Supreme Court had taken its position in Hough v. Porter-practically contemporaneously with enactment of the liberal water code of 1909-that following adoption of the Desert Land Act, a settler on riparian public land became entitled to use the water only for domestic and associated stockwater purposes and had to acquire additional waters through prior appropriation.74 The principle thus developed in Hough v. Porter as to the relation of the Desert Land Act to riparian lands has not been repudiated by the Oregon Supreme Court.75 State land grants.-In several riparian doctrine States, questions arose concerning the passing of riparian rights to grantees of State lands. The consensus of decisions that have come to the author's attention is that in such jurisdictions the State holds title to riparian rights of lands which it possesses in a proprietary capacity; that by its appropriation legislation, the State offered such waters to the public for appropriation under the statutory procedure; and that purchasers of lands from the State thereby became vested with title to riparian rights which were inferior to appropriative rights previously vested but were superior to appropriations subsequently made. These principles are analogous to those that apply to riparian rights in lands acquired from the Federal Government. Details for several State situations follow. (1) The first California statute authorizing appropriation of water, enacted in 1872 as part of the Civil Code, ended with section 1422 reading: "The rights of riparian proprietors are not affected by the provisions of this title."76 According to the State supreme court, in Lux v. Haggin: (a) the water rights of the State, as owner of riparian lands, were not reserved to the State by section 1422, but instead were conferred on those who appropriated water in the manner prescribed in the act; (b) "section 1422 saves and protects the riparian rights of all those who, under the land laws of the state, shall have acquired from the state the right of possession to a tract of riparian land prior to the initiation of proceedings to appropriate water in accordance with the provisions of the Code;" and (c), section 1422 not only protected riparian rights already acquired when the appropriative provisions went into operation, but also saved riparian rights to those who should receive grants of State lands after such enactment.77 According to Wiel, no more was said in section 1422 because the rights of private land had not been much involved in the litigation of which the code "Hough v. Porter, 51 Oreg. 318, 383-407, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). See Hedges v. Riddle, 63 Oreg. 257, 259-260, 127 Pac. 548 (1912). "Hutchins, supra note 52, at 203. With respect to rights as between riparians not claiming under the 1909 water code, see Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). For a dispute between riparians prior to the 1909 water code, see Jones v. Conn, 39 Oreg. 30, 64 Pac. 855, 65 Pac. 1068 (1901). 7<Cal.Civ. Code § 1422 (1872). 77Lux v. Haggin, 69 Cal. 255, 368-370, 376,439, 4 Pac. 919 (1884), 10 Pac. 674 (1886). |