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Show 755 the effect of the Desert Land Act of 1877 26B was to abrogate the modi- fied common-law doctrine of riparian rights, except for domestic use and the watering of stock essential to the sustenance of riparian land- owners, so far as public lands entered after the date of that act were concerned. The water appropriation statute of 1909 contained pro- visions defining and limiting vested riparian rights to the extent of the actual application of water to beneficial use prior to the passage of the act, or within a reasonable time thereafter by means of works then under construction, all such rights to be adjudicated under the statutory procedure therein provided;266 and the supreme court upheld the validity of this legislative definition of vested riparian rights, stating that it was within the province of the legislature, by that act, to define a vested riparian right or to establish a rule governing the conditions under which it should be deemed to be created.267 In the develop- ment of the principle that one cannot claim both riparian and ap- propriative rights for the same use of water,268 the court has held re- peatedly that the election of one of these two claims is in substance a waiver of the other, and that to claim a right to use a specified quantity of water from a specified date, to the exclusion of use by others, is to waive one's riparian right for the purpose of the pro- ceeding in which the claim is made and to assume the character of an appropriator.269 No right can be adjudicated under the statutory procedure except for the use of a specific quantity of water and with a fixed date of priority-in other words, on an appropriative basis.270 The measure of the vested right of a riparian landowner is beneficial S6B 19 Stat. L. 377 (March 3,1877). 886 Oreg. Laws 1909, ch. 216, § 70; Comp. Laws Ann., § 116-403. *"/« re Hood River, 114 Oreg. 112, 174-182, 227 Pac. 1065 (1924). The Federal Circuit Court of Appeals, Ninth Circuit, concluded that the Oregon riparian owner's right to the natural flow of a stream, substantially undiminished, had been validly abrogated by the Oregon statute of 1909 as construed in the Hood River case: California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 567-569 (C. C. A. 9th, 1934). The United States Supreme Court affirmed the judgment of the Circuit Court of Appeals, but passed over this particular question inasmuch as the ground upon which the Supreme Court's affirmance was based made the consideration of this question unnecessary: Cali- fornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 153, 165 (1935). 288 See supra, n. 263, p. 754. mCaviness v. LaGrande Irr. Co., 60 Oreg. 410, 421-423, 119 Pac. 731 (1911); Little Walla Walla Irr. Union v. Finis Irr. Co., 62 Oreg. 348, 358, 124 Pac. 666, 125 Pac. 270 (1912); Bowen v. Spaulding, 63 Oreg. 392, 395, 128 Pac..3.7. (1912); In re Schollmeyer, 69 Oreg. 210, 212, 138 Pac. 211 (1914); In re Sucker Creek, 83 Oreg. 228, 234-237, 163 Pac. 430 (1917); Norwood v. Eastern Oregon Land Co., 112 Oreg. 106, 111-112, 227 Pac. 1111 (1924); In re Deschutes River and Tributaries, 134 Oreg. 623, 692, 703-706, 286 Pac. 563, 294 Pac. 1049 (1930). 870 In re Deschutes River and Tributaries, 134 Oreg. 623, 704, 705, 286 Pac. 563, 294 Pac. 1049 (1930). |