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Under the Desert Land not only all surplus water over and above such as might be appropriated and used by the desert-land entrymen, but the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable were to remain free for the appropriation and use of the public for irrigation, mining and manufacturing purposes. If this language is to be given its natural meaning, and we see no reason why it should not, it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. From that premise, it follows 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. While this court thus far has not found it necessary to determine that precise question, its words, so far as they go, tend strongly to support the conclusion that is suggested.
The riparian owner purchased its land from a patentee who had acquired the land from the United States under the Homestead Act of 1862. The appropriator, a cement company had possession of nearby land and was allowed to appropriate water under a contract of sale with a municipality. Neither the riparian owner nor its predecessors had appropriated any water from the stream. However, the appropriator intended to use stone blasted from its property to build a dam to be used in connection with a power plant it intended to build. The riparian owner claimed that because its predecessor's interests predated both the appropriator's interest and the Oregon Water Code, 1909 Ore. Laws 216, it was entitled to an injunction. The district and circuit courts disagreed.
Did the district court err in denying the riparian owner of an injunction against the appropriator's interference with the flow of a nonnavigable stream?
The Court affirmed, holding that the Oregon Water Code was a proper exercise of the state's police power and was authorized under the Desert Land Act of 1877, 19 Stat. 377, which provided that surplus water over and above such actual appropriation and use, upon the public lands remained free for public appropriation and use for irrigation, mining and manufacturing purposes subject to existing rights.