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Show 756 use of the water,271 which right, to have an enforceable priority, must be adjudicated with the elements of an appropriative right. The net result of the Oregon legislation and court decisions has been a virtual abrogation of the substance of the riparian doctrine except as to certain vested rights chiefly for domestic and stock-watering purposes. That is to say, the raparian doctrine in Oregon appears to be little more than a legal fiction. The Oregon Supreme Court has held that water flowing under- ground in a known and defined channel constitutes a watercourse and is governed by the laws applicable to surface streams, not by the laws applicable to percolating waters.272 The few statements of the court with reference to the law of percolating waters are to the effect that such waters belong to the owner of the overlying land.273 A statute applicable only to the counties lying east of the summit of the Cascade Mountains provides that subject to existing rights, waters found in underground streams, channels, artesian basins, reser- voirs, or lakes, the boundaries of which may reasonably be ascertained, belong to the public and may be appropriated for any purpose other than for domestic and culinary use, stock, or the watering of lawns and gardens not exceeding one-half acre in area.274 Appropriations are made under the procedure governing appropriations from surface streams, with certain modifications pertinent to the differences in character of surface and ground-water supplies. The issuance of per- mits is restricted to the safe yield of the ground-water basin, contingent upon a reasonable or feasible pumping lift in case of pumping develop- ments, or a reasonable or feasible reduction of pressure in case of artesian developments. The statutory procedure for the adjudication of water rights pro- vides for determinations by the State Engineer, upon petition of one or more water users, the findings of fact and definitions of rights being filed with the circuit court, which hears the matter under proceedings similar to those of a suit in equity and upon final hearing enters a decree of adjudication affirming or modifying the order of the State Engineer.275 This method of statutory adjudication, which has been copied in several other States, is a variation from the previously de- veloped Wyoming system; that is, under the Oregon system the State 271 Concurring opinion, Justice Coshow: In re Hood River, 114 Oreg. 112, 207, 227 Pac. 1065 (1924). 272 Taylor v. Welch, 6 Oreg. 198, 200 (1876) ; Hayes v. Adams, 109 Oreg. 51, 58, 218 Pac. 933 (1923); Bull v. Siegrist, 169 Oreg. 180, 186, 126 Pac. (2d) 832 (1942). 273 Taylor v. Welch, 6 Oreg. 198, 200-201 (1876); Boyce v. Cupper, 37 Oreg. 256, 260-261, 61 Pac. 642 (1900); Hayes v. Adams, 109 Oreg. 51, 57, 218 Pac. 933 (1923). "4 Oreg. Comp. Laws Ann., §§ 116-443 to 116-453. 276 Oreg. Comp. Laws Ann., §§ 116-801 to 116-823. |
