California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935)

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California Oregon Power Co. v. Beaver Portland Cement Co.

No. 612

Argued April 5, 8, 1935
Decided April 29, 1935
295 U.S. 142

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

1. A patent issued under the Homestead law, after the date of the Desert Land Act of 1877, for lands in the State of Oregon bordering on a nonnavigable stream does not, of its own force, invest the owner of the land with a common law right to have the water flow ut solebat, as against an opposite riparian owner who seeks, by blasting in the bed of the stream, on his own side, to obtain stone for a dam and to free the channel for the use of adjudicated water rights and permits to appropriate issued by state authority. P. 153.

2. Water rights acquired in the so-called arid and semi-arid States and Territories by the application of the nonnavigable waters on the public domain to beneficial uses in accordance with local rules, customs, laws, and judicial decisions were recognized and secured by the Act of July 26, 1866, § 9, the amending Act of July 9, 1870, § 17, and the Desert Land Act of 1877. P. 154.

3. The Desert Land Act of 1877 allowed entry and reclamation of arid lands within the States of California, Oregon, and Nevada (to which Colorado was later added), and the then Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, which have since become States. It contained a proviso to the effect that the right to the use of water by the claimant should depend upon bona fide appropriation, not to exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation, and declared that

all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.

Held, that the effect was to sever all waters upon the public domain, not theretofore appropriated, from the land itself, and that a patent issued thereafter for lands in a desert land State or Territory, under any of the land laws of the United States, carried with it, of its own force, no common law right to the water flowing through or bordering upon the lands conveyed. Pp. 155-158.

4. As owner of the public domain, the United States has power to dispose of the land and water together or separately. P. 162.

5. A fair construction of the provision of the Desert Land Act, supra, is that, for the future, the land should be patented separately, and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the States and Territories named. P. 162.

The terms of the statute, thus construed, must be read into every patent thereafter issued, with the same force as though expressly incorporated therein, with the result that the grantee will take the legal title to the land conveyed, and such title, and only such title, to the flowing waters thereon as shall be fixed or acknowledged by the customs, laws, and judicial decisions of the State of their location. P. 162.

7. If it be conceded that, in the absence of federal legislation, the State would be powerless to affect the riparian rights of the United States or its grantees, still, the authority of Congress to vest such power in the State, and that it has done so by its legislation, cannot be doubted. P. 162.

8. Following the Desert Land Act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common law rule in respect of riparian rights should obtain. P. 163.

73 F.2d 555 affirmed.

Certiorari, 294 U.S. 701, to review the affirmance of a decree denying, for the most part, injunctive relief sought by the Power Company against interference with the normal flow of a stream bordering its land.