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the "secondary" is the subordinate grade. The "primary" vested rights exist (1) when any person or persons shall have taken, diverted, and used any of the unappropriated water of any natural stream, lake, or spring, or other natural source of supply; (2) when any person or persons shall have had open, peaceable, uninterrupted, and continuous use of water for a period of seven years. The "secondary" rights exist, subject to the "primary," (1) when the whole water of any stream, lake, or spring, or other natural source of supply, has been taken, diverted, and used by prior appropriators for a part or parts of each year, and other persons have subsequently appropriated said water during other parts of said year; and (2) when the unusual increase of the water of a stream, over and above its average amount for seven years, has been appropriated and used by any person or persons, and the ordinary or average flow of the same stream has been appropriated and used by other persons.

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In this state, the most important statute on the subject of water rights is an act (passed in 1891) for the organization and government of irrigation and ditch companies.1 The detailed discussion of it belongs to a later part of this work. But it is necessary here to remark that this statute expressly recognizes the common-law doctrine of riparian rights as being in force in Oregon. For it provides (sec. 8) that "such corporation may maintain an action for the condemnation and appropriation of the right to the flow of water in any stream from which it purposes to divert water below the point of diversion vested in the owners of lands lying contiguous to such stream by virtue of their location. . . But no person owning lands lying contiguous to any stream shall, without his consent, be de

1 Laws of Oreg. 1891, p. 52.

prived of water for household or domestic use, or for the purpose of watering his stock, or of water necessary to irrigate crops growing upon such lands and actually used therefor." That the doctrine of appropriation also obtains in this state, in cases where it would not conflict with the rights of riparian owners, will sufficiently appear from the Oregon decisions cited in the preceding pages of this work.

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The laws of this state, upon the subject of water rights and irrigation, at present exhibit a great deal of confusion and ambiguity, in consequence of the attempt to adopt and unite several different systems of legislation, in force in other states, but not admitting of being blended into a consistent whole. One of these statutes, dealing with the right to appropriate water, contains provisions very similar to those of the California Civil Code, already quoted. Thus, it enacts that the right to the use of water may be acquired by appropriation (the language is general and is not restricted to waters on the public lands); that as between appropriators the first in time is first in right; that notice must be posted; that the work must be commenced within a certain time and diligently and continuously prosecuted to completion; that the appropriator's right relates back to the posting of the notice, but failure to comply with the law deprives him of the right as against any one who does comply with it; that existing valid appropriations shall be protected; that the right to the use of water may be transferred by deed; and that the appropriator may change the purpose of his appropriation.2

1 See, also, Hayden v. Long, 8 Oreg. 244.
21 Hill's Ann. St. Wash. $$ 1709-1717.

Another statute provides for the case of persons who desire to conduct water to their lands, for purposes of irrigation, from streams at a distance, giving them the right of way over the lands of others for their ditches. This act is similar in its provisions to that in force in Idaho, which we have already quoted.1

Another part of the same code includes provisions for the organization of "irrigation districts."2 This is substantially the same as the "Wright act" in California, and is in great part a literal transcript of that act. There is also a system of rules for the formation of irrigation and ditch companies, which exhibit a marked similarity to those enacted in Oregon.3 To these statutes we shall recur in a later chapter.

It might appear from the foregoing that the common-law doctrine of riparian rights was effectually abolished, or at least had an extremely limited applicability, in the state of Washington. But on the other hand, certain clauses in the statutes seem expressly to recognize that doctrine as still continuing in force. Thus, in the law giving to irrigation companies the power of eminent domain for the acquisition of the water rights needed by them, it is provided: "The right herein given to condemn the use of water shall not extend any further than to th riparian rights of persons to the natural flow of water through lands upon or abutting said streams or lakes, as the same exist at common law, and is not intended in any manner to allow water to be taken from any person that is used by said person himself for irrigation, or that is needed for that purpose by any such person."

11 Hill's Ann. St. Wash. SS 1719-1722.

2Id. §§ 1784-1861.

3 Id. SS 1718-1782.

+ Id. § 1774.

$117. Texas.

In this state, we find certain legislation which bears a marked resemblance to that adopted in certain of the Pacific communities, and which was no doubt induced by similar geographical and social conditions. It seems proper, therefore, to mention it in this connection. recent statute1 contains the following provisions:

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Sec. 1. "The unappropriated waters of every river cr natural stream within the arid portions of the state of Texas, in which, by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes, may be diverted from its natural channel for irrigation, domestic, and other beneficial uses. Provided that said water shall not be diverted so as to deprive any person who claims, owns, or holds, a possessory right or title to any land lying along the bank or margin of any river or natural stream of the use of the water thereof for his own domestic use."2

1Sayles' Addendum to Ann. St. Tex., tit. 55. "Irrigation, art. 3000a. This is the act of Mar. 19, 1889.

2 In the case of McGhee Irrigat ing Ditch Co. v. Hudson, (Tex.) 21 S. W. Rep. 175, the court sustained this statute against objections to its validity on the score of uncertainty. It was said: "The contention of appellant is that the act is not void and uncertain, as the court will take judicial knowledge of the locality of the arid region referred to in the act. We agree with appellant that the act of the legislature in question is not void for uncertainty, but not for the reason given by him. Judicial knowledge may in some cases extend to geographical lines and subdivisions, and to certain

generally well-known climatic conditions that may exist in certain localities, that are known by virtue of the fact that they are a part of the general history of the land.such, for instance, as that characterize the desert of Sahara. But no such fact is gathered from the geography of the country, or the general history of the state, that informs us where the arid region begins, and where it ends. The court cannot judicially know that a certain county in the state is in an arid region. But we think the law should stand, as sufficiently definite and certain, because the arid portion of the state to which the act shall apply is indicated and defined by the first and second sections of the law. The law reads, (first section:) "That the

Sec. 2. "The unappropriated waters of every river or natural stream within the arid portion of the state, as described in the preceding section of this act, are hereby declared to be the property of the public, and may be acquired by appropriation for the uses and purposes as hereinafter provided."

Secs. 3-9. These sections contain provisions regulating the manner and effect of the appropriation. They are modelled upon the corresponding provisions of the Civil Code of California (§§ 1410--1421), but differ from them in some particulars. For example, instead of posting a notice, the appropriator is to file a sworn statement in the office of the county clerk, together with a map showing the route of his ditch or canal. The work is to be begun within ninety days after the filing of the statement. The same act also contains provisions for the organization and

unappropriated waters of any river or natural stream within the arid portions of the state of Texas, in which, by reason of the insufficient rainfall, irrigation is necessary for agricultural purposes, may be diverted from its natural channel for irrigation," etc. (Second section:) “That the unappropriated waters of any river or natural stream within the arid portions of the state, as described in the preceding section of this act, are," etc. We think the benefits of this act are limited to that arid portion of the state where rainfall is insufficient, and irrigation is necessary, for agricultural purposes; and a party seeking its benefits must show this condition of things.

The act is not void and uncertain because it may require evidence to give it application. This is permitted and required under a great many statutes under which rights

of property are acquired. There are laws of the United States that permit parties to acquire swamp lands, timber lands, mineral lands. etc., and certain laws of this state that permit purchasers to acquire agricultural lands and pasture lands belonging to the commonschool fund. These laws did not pretend to designate the locality of the class of lands mentioned, but left that to be ascertained as a fact, and when so done the law was applied. In construing these statutes it has never been pretended, so far as known to this court, that they were void for uncertainty; and such a construction, if adopted, we apprehend, would prove disastrous to many titles throughout the entire Union. Other laws could be mentioned, to the same effect, but enough have been cited to illustrate the tenor of legislation upon such subjects."

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