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Show 754 conclusively presumed; but the water rights of cities and towns for all reasonable and usual municipal purposes are exempted from this provision. *°v As a result of legislation and judicial decisions, Oregon has become essentially an appropriation-doctrine State notwithstanding cases in which the riparian doctrine, to some extent at least, was considered to be a part of the State water law. In various decisions up to and including the first decade of the present century, the supreme court recognized that riparian owners had certain rights to the use of water,260 but also recognized the applicability of the appropriation doctrine to rights acquired on the public domain pursuant to authority contained in acts of Congress, as against riparian claims incident to lands subse- quently passing to private possession,261 and the resulting modification of the common-law doctrine.262 The incompatibility of the riparian and appropriation doctrines was acknowledged, and there became es- tablished the principle that a settler upon public land contiguous to a stream could elect to make a prior appropriation of the water, or to insist upon his riparian right, but that he could not do both.263 In the leading case of Hough v. Porter,2Qi the supreme court held that 289 Oreg. Comp. Laws Ann., § 116-437. Abandonment and forfeiture of water rights acquired under laws enacted prior to the "water code" of 1909 are covered in Comp. Laws Ann., §§ 108-309, 116-411, and 116-417. 200 Taylor v. Welch, 6 Oreg. 198, 200 (1876); Coffman v. Robbins, 8 Oreg. 278, 282 (1880); Shively v. Hume, 10 Oreg. 76, 77 (1881); Shook v. Colohan, 12 Oreg. 239, 244, 6 Pac. 503 (1885); Weiss v. Oregon Iron & Steel Co., 13 Oreg. 496, 498-502, 11 Pac. 255 (1886); Low v. Schaffer, 24 Oreg. 239, 245- 246, 33 Pac. 678 (1893); Jones v. Conn, 39 Oreg. 30, 34, 36-37, 39-41, 44-46, 64 Pac. 855, 65 Pac. 1068 (1901); Cox v. Bernard, 39 Oreg. 53, 61, 64 Pac. 860 (1901); Bauers v. Bull, 46 Oreg. 60, 66, 78 Pac. 757 (1904); Brown v. Gold Coin Min. Co., 48 Oreg. 277, 286, 86 Pac. 361 (1906). 261 Lewis v. McClure, 8 Oreg. 273, 274-275 (1880); Tolman v. Casey, 15 Oreg. 83, 88, 13 Pac. 669 (1887); Curtis v. LaGrande Water Co., 20 Oreg. 34, 42, 23 Pac. 808 (1890); Speake v. Hamilton, 21 Oreg. 3, 6, 8, 26 Pac. 855 (1890); Simmons v. Winters, 21 Oreg. 35, 42, 27 Pac. 7 (1891); Brown v. Baker, 39 Oreg. 66, 68-69, 65 Pac. 799, 66 Pac. 193 (1901); Morgan v. Shaw, 47 Oreg. 333, 337, 83 Pac. 534 (1906); Porter v. Pettengill, 57 Oreg. 247, 249, 110 Pac. 393 (1910). 202 Carson v. Gentner, 33 Oreg. 512, 515-516, 52 Pac. 506 (1898). 268 North Powder Mill. Co. v. Coughanour, 34 Oreg. 9, 22, 54 Pac. 223 (1898); Brown v. Baker, 39 Oreg. 66, 70, 65 Pac. 799, 66 Pac. 193 (1901); Davis v. Chamberlain, 51 Oreg. 304, 311, 98 Pac. 154 (1908). See Low v. Schaffer, 24 Oreg. 239, 245-246, 33 Pac. 678 (1893). See also footnote 269, below. 264Hough v. Porter, 51 Oreg. 318, 383-406, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). Approved and applied in Hedges v. Riddle, 63 Oreg. 257, 259-260, 127 Pac. 548 (1912). Riparian rights for lands acquired from the Government prior to the enactment of the Desert Land Act were held to include irrigation purposes in Norris v. Eastern Oregon Land Co., 112 Oreg. 106, 109-112, 227 Pac. 1111 (1924). |