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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (March 13, 1911)
DAILY CAPITA! JOURNAL, SALEM, ORwnOX, MONDAY, BURCH 13, 1911. riGZ TUSH A DECISION OF INTERESTED OREGON SUPREME Full Test Published by Courtesy of Supreme Cookinliaiiij et al ts. Lewis, et al, Marlon County. B. S. Cooklnham and W. A. Thach- er, respondents, vs. John H. Lewis, H. L. Holgate and F. M. Saxton, com- prising the Board of Control of the State of Oregon, and 0. Flnkelnburg, trustee, appellants. . Appeal from the circuit court for Marlon county. The Honorable Wm. Galloway, Judge. Argued January 31, 1911. C. A. 1 Mr .T. N. Hart (and J. H. Nichols. on brief) for respondents. Will R. King and John L. Rand (A. M. Craw-, (ord, I. H. Van Winkle and James T. Chlnnock, on brief) for appellants. Eakln, C. J. Reversed and remanded. On JIarch 18, 1909, plaintiffs filed with the state engineer, John H. Lewis, an application for a permit to make an appropriation of 370 sec ond feet of the waters of Powder River in Baker and Union counties, for 120 days, making 88,060 acre feet, to be diverted ln Sec. 26, T. 6, S. R. 40 E. W. N., for the purposes of pow er and domestic use and to Irrigate 30,000 acres of land in T. 7 S. R. 40 and 42 E.; T. 8, S. R. 41, 42 and 43 E.; and T. 9 S. R. 42 and 43 E.; and to construct a storage reservoir to Im pound the waters of Powder River In Thief Valley with a capacity of 60, 000 acre feet, at an estimated cost of $500,000. On March 31, 1909, at 8 a. m. they filed a supplemental appli cation for an additional quantity of water for Irrigation upon certain lands, some of which were Included In the former application. On the. same day at 4:30 p. m O. C. Flnkelnburg, trustee, filed an application with the state engineer for a permit to con struct a storage reservoir ln Thief Valley for the storage of water of ed Its jurisdiction or where It has ex Powder River for Irrigation,' the dam 1 erclsed Its Judicial functions errone therefor to be in Sec. 26, T. 6 S. R ! ously and contrary to the course of 40 E., at an estimated cost of $200,-' procedure applicable to the matter 000. Thereupon, on April 12, 1909, before it: Garnsey v. County Court, the state engineer, being of the opln-! 33 Or. 201. Therefore, the write will ion that the proposed use In each ( only bring up the record, upon which case would be a menace to the safety the case will be reviewed as to ques and welfare of the public, referred tlons of jurisdiction and errors ln such applications, by letter, to the the proceeding. It will not review board of control, with this statement: questions of fact and has nothing to "The proposed use ln each of the fol- do with the evidence: Smith v. Port lowing cases are a menace to the land, 25 Or. 297, 301; Douglas County c i MUCH IMPORTANCE TO THOSE IN THE WATER APPROPRIATIONS COURT DECISIONS F. A. Turner, Reporter of the Court. safety and welfare of the public. Prior to the examination of these application, and on March 30 1909 the vacant and unappropriated lands Included in the area described ln these applications were withdrawn from entry under the public land laws of the United States by the secretary of the Interior for irrigation by the 8tate under the Carey Act, or by the United States under the Reclamation Act Such withdrawal was made at the request of the State Land Board, by order dated March 23, 1909." On September 11, 1909, after a full hearing, the Board of Control direct ed the state engineer to refuse the ap plications of the party or parties not securing final contract with the Des ert Land Board for the reclamation of said lands; and that he approve the application of the party securing such a contract Plaintiffs, on Dec. 20, 1909, filed a petition ln the circuit court for Marlon county, State of Oregon, for a writ of review, reciting in full the facts above mentioned and the writ was duly Issued the same day. The return to the writ contains the transcript of the proceedings be fore the Board of Control, together with a full transcript of the evidence produced before the board. At the hearing upon the return, the circuit court sustained the writ and directed the dismissal of the proceeding.before the Board of Control, for the reason, that It had no jurisdiction of the pro ceeding and defendants appeal there from to this court. Eakln, C. J. A writ of review lies only ln cases ln which the lower court, officer or tribunal has exceed- Very convenient OU IH FIRE We will install in your house. FREE, putting you This offer expires in a few DO NO WASTE! Phone br-drop us a postal and Portland Road Co. v. County of Douglas, 6 Or. 209, 303. The main contention of Dlalnntlffs is that by the terms . of sections 45 j and 47 of the Act of 1909 (Laws 1909, ' 332; L. O. L. Sec. 6624, 6627) known1 as the "Water Code," the person, fil ing application for a water right Is entitled to the first right and that the law Is mandatory upon the state en gineer to approve it, unless the pro posed use is a menace to the safety and welfare of the public, ln which case he must refer It to the board of control, and that there is nothing before him in this case to disclose any such menace. It was upon this ground that the circuit court sus tained the writ To comprehend the full meaning of these two sections of the water code, it is necessary to review the law re lating to the subject To aid ln the reclamation of desert public land, the congress of the United States, by the Act of August 18, 1894, known as the "Carey Act" (28 Stat. L. 422; found also In Vol. I, L. C. p. 65) and amend ments of June 11, 1896, (29 Stat. L. 434), March 3, 1901 (31Stat L. 1188, Sec. 3) and March 15, 1910, authorized the secretary of the interior to con tract with certain states to grant and patent to the state such desert land, not exceeding one million acres in each state, as the state may cause to be irrigated, reclaimed and occupied by actual settlers. In 1901 the legis lature of Oregon accepted the condi tions of this offer and provided that, upon the application of any person, desiring to reclaim any desert land, the state land board should enter into a contract with the secretary of the Interior therefor, and to enter into such contract as may be neces sary to caus,e the reclamation there of, with provision for procuring wa ter therefor and the manner of pro cedure: (Laws 1901, 376; Sec. 3283 et seq. B. & C. Comp.) For the pur pose of still further aiding In the reclamation of arid public lands, the legislature, on Feb. 22, .1905 (Laws 1905, 401; L. C. L. Sec. 6598) enacted a law for acquiring water for the reclamation of arid lands; created the office of state engineer, and gave him general supervision of all meas urements and records of appropriation of waters of the state, and required him to deliver to the governor before each session of the legislature a full report of the work of his office with such recommendations for legislation EC w during the hot weather. Railway, Light New Business Department. as he may deem advisable. The legislative act of February 24, 1909 (Laws 1S09, 377; L. G. L. Sec 3860 et seq.) which created the desert land board, of which the state engi neer is a member, again accepted the conditions of the Carey Act and made further provision for reclaiming the desert land in this state, and repealed Sections 3283 to 3293 B. & C. Comp., above cited. The act of February 24, 1909, known as the "Water Codo" (Laws 1909, 319; L. C. L. 6594 et seq.) declares that water rights can only be acquired as in the act provided; and creates the offices of division superintendents and the board of control, of which the state engineer Is a member. The first 44 sections of the act relate to the manner of set tling disputed rights among water users and sections 45 to 47 (L. O. L. Sec. 6624, 6626) relate to the manner of acquiring water rights and sec tions 58 and 69 (L. G. L. Sec. 6622-3) provide for reservoir permits. Sec tion 45 provides that any person in tending to acquire a right to the ben eficial use of any waters shall, be fore commencing the construction of any ditch, make application to the state engineer for a permit to make the appropriation. By 46 the appli cation shall, among other things, set forth the nature and amount of the proposed use; If for agricultural pur poses it shall give the legal subdivi sions of the land and the acreage to be irrigated: (Farmers' Irr. Dlstv. Franck, 72 Neb. 136; 100 N. W. 288.) Section 47, among other things, pro vides "It shall be the duty of the state engineer to approve all applica tions made ln proper form which con template the application of water to a beneficial use, but when the pro posed use conflicts with determined rights, or Is a menace to the safety wltn tha owner for a specified quan and welfare of the public, the appll- j tlty of the 8tored water for needs canon snau oe rererrea to tae Doara , of and usa upon h8 lmi and when of control for consideration. It shair reclamation is completed the water be the duty of the board to enter an becomes appurtenant to his land, order directing the refusal of such'The water c0de makes a distinction application, if, after full hearing, the between a permit for diversion of public Interest demands." Section 58 . water and one .,,., . r.snl.. gives the procedure under a reser- voIr and gtore BUrplus. The latter voir .permit, called a "primary per- doe9 not ,nclude the rlght lo dlvert mit" In which an enumeration of any and UBe 8Ucn Btored water wnIch lands proposed to be Irrigated under ' muBt De tne subJect of the secondary this act shall not be required, but the permt. This water code was enacted parties proposing to apply the water In tne iIght of and wIth reference to stored to a beneficial use shall file the desert land act of 1901, above an application for a secondary per- cited and the act substituted, there mlt, and provision Is made for ac- for whch creates the desert land quiring title to the water by the user Doard( a8 well a8 tne act of 1895 as appurtenant to the land irrigated. 1 The right to the beneficial use of must be granted by the state engl water to be acquired under the per- neer before a right can be Initiated, mit applied for under Section 45, et indicates that it is not merely a ques seq., is not an opportunity to ac- tion of priority ln filing the appllca qulre a monopoly of the water of a tion that secures the right. There stream for promiscuous sale, but ' are many things to be considered by must contemplate a use upon specific 1 the engineer before approving the ap Iands which, when completed under ' plication for a permit If it appears a fuel stub and give you a two-burner gas stove, in a position to cook with gas. days, so if you haven't taken advantage of it IT NOW NO DIRT! NO SOOT! 4 our representative will be pleased to call on you. ysiii) Joy AND SICKNESS DON'T CHUM TO BE HAPPY KEEP WELL USE ONLY DR. KING'S NEW DISCOVERY TO CURE COUGHS AND COLDS WHOOPING COUGH AN0 ALL DISEASES OF THROAT AND LUNGS 3 SOLD AND GUARANTEED BY 53, shall become appurtenant to the ' land to which it is applied. The pri mary reservoir permit, provided for by Sec. 68, contemplates a storage of the water ln some locality where It can be utilized for Irrigation. The secondary permit contemplates that users of the water shall acquire a Dermanent ownershlD by agreement above cited. The fact that a permit j22 YT T7 inl Save time, worry and trouble OFFER & Power Company Phone MME IN REACH BROUGHT) I JOY J TO l Millions Prlca SOe and $1.00 j. 1. 1' turn. that the time when the construction is to be begun, or completed, as stated ln the application, is unreason able, or if the use Is impracticable or not beneficial, the englner may deny the permit; or if It conflicts with de termined rights or is a menace to the safety and welfare of the p.ibllc, it would be his duty to refer the np- J plication to the board of control; and ln determining whether a permit shall be approved he Is not limited to the recitals ln the application. He may act upon any Information he may have. By Sec. 10 of the Act of 1905 (Laws 1905, 404; L O. L. Sec. 6590) he is required to make hydro graphic and topograhic surveys and tnvestlagtton of each stream system and the source of water supply In the state,, and report the same to the governor, and he Is thus ln a position to determine whotiio1 an application will be for a beneficial use or wheth er any permit applied for would be a menace to the public welfare. With this understanding of the statute upon the subject, and other facts within the knowledge of the state engineer, we will procoed to ap ply It to the conditions ln this cast. It appears that since 1901, the state through the statu land board, until the creation of the Deaort Land (Continued on Page 6.) Main 84. ."-i-mmK'- j7 r Celebrated Lear Furno. The Best Heater It will save you ovtey every day yo own It. I veil aid natal', the best. Let me give you figures. See Me About an individual lighting plant for your home. The best thing la the market for cooking and lighting. A. L. Frasier Phone 135. 26k State Street ES West Salem Transfer Passenger Baggage x Connects with all train at West Salem for Dallas, Falls City and Salem. Leaves Journal office for West Salem at 8:40 a. m 12 m 1:10 p. m, and 4-00 p. m. every day except Sunday. Also for Independence, Mon mouth and McMlnnvllle. Leaves Sunday at 8:00 a. m., 1:00 p. m., and 5:15 p.m. Call at hotels on request. Telephone or lease orders at Capital Journal office any day but Sunday. Phone 83. J. B. Underwood, Mgr. 10 FRENCH FEMALE PILLS. A Ban, CnrraiN Riun tor Bvftumbo H mratf atkw. NEVER KNOWN TO Mil. Rurl Siyl B.Ui- fautlon luari!(el or Mootj Refunded. Bul pMtiald fur 1 1. 00 per boi. Will m1 tbttn on trial, t warn for when rvlUrat, Haunploa KrM. If jur drufglat auw not bar UMn mu4 jour ertiin W tlw UNITCDMrOICALCO.,BOVr.LANflTf, Sold in Sattm bf Dr. 5. C. 5font