I. Subject Treated in General.

§ 495. Particular Features of State. That part of Oregon lying east of the Cascade range, and comprising an area of over thirty-five millions acres, although forming the greater portion of the State, is known as Eastern Oregon, and may be properly classed with the arid region. The climate, as compared with the rest of that region, is unusually mild.

rule there is sufficient moisture two or three years out of five to raise fair crops. It may be said, therefore, that while in one sense irrigation is not absolutely essential, as farmers can make a precarious living without it, yet, on the other hand, without irrigation the most valuable resources will lie dor

mant.

The general physical condition of the arid portion of the State may be briefly described as follows: The geological formation, soil and climate may be said to be practically the same as the State of Washington, which has been described. 1 In general the soil of the lands available for cultivation may be said to be practically the same throughout the State, with the exception of the small valleys along some of the mountain streams, where the sub-strata is drift and where the soil is of a different character. The formation is volcanic, and consequently the soil is volcanic ash. That, when supplied with sufficient moisture, is the most productive soil in the world.

§ 496. Irrigation in State.-Irrigation has been quietly and gradually introduced and practiced in a simple manner, each farmer building his own ditch and relying upon his own unaided effort. Within the last few years many projects have been set on foot looking toward the more complete utilization of the water supply of the eastern part of the State for this purpose. Not only has irrigation received a lasting stimulus in the more arid portions of the State, where it is essential, but its benefits are beginning to be seen in regions where the rainfall is considered abundant. While it is true that in some portions of the State agricultural development has without irrigation progressed with some degree of success, it is also true that the area where even partial success in this direction was possible has for years been fully occupied.

follows that any extention of the cultivation of Oregon lands in the future must depend upon bringing land and water together by artificial means.

II. General Statutory Enactments.

§ 497. Statutory Water Rights in General.-Corporations. On the 18th day of February, 1891, there was filed in the office of the Secretary of State of Oregon, and thereafter became a law, "An Act to provide for the appropriation of water from the lakes and running streams of the State of Oregon for the purpose of irrigation and supplying water for

1 See Ante Section 413-414.

household and domestic use, and for watering live stock upon dry lands, and making charges for water supplied; allowing the condemnation of lands for right-of-way; prescribing the manner of making appropriations and effecting condemnation of lands; allowing the condemnation of rights of riparian proprietors arising from their location; regulating the manner of constructing and operating ditches and canals, flumes, reservoirs, distributing ditches and feeders; prescribing right of recovery of damages resulting from the construction and operation of the same; securing the protection of highways; granting a lien upon crops raised by irrigation, and providing for its enforcement; declaring all such ditches or canals or flumes to be real estate, and providing for the conveyance of the same; providing punishment for trespassers; prescribing the manner of settlement of conflicting rights by suit, and granting right of way over State lands."'!

$498. Same.-General Rights Provided.-Section 1 of the Act provides "That the use of water of the lakes and running streams of the State of Oregon for general rental, sale or distribution, for purposes of irrigation and supplying water for household and domestic consumption and watering live stock upon dry lands of the State is a public use, and the right to collect rates or compensation for such use of said water is a franchise. A use shall be deemed general within the purview of this Act when the water appropriated shall be supplied to all persons whose lands lie adjacent to or within reach of the line of the ditch or canal or flume in which said water is conveyed, without discrimination other than priority of contract, upon payment of charges therefor as long as there may be water to supply."

§ 499. Corporations.-Powers of.-Sec. 2 provides that a corporation organized for the construction and maintenance of a ditch or works for general irrigation or other purposes may appropriate and divert water from its natural bed or channel and condemn the right-of-way for its ditch, canal or

1 See Stat. 1891, p. 52–60.

flume, and it may also condemn the rights of riparian proprietors upon the lake or stream from which such appropriation is made upon complying with the terms of the Act; it may also condemn land for reservoir sites for storing water for future use, and for rights-of-way for feeders carrying water to such reservoirs, and for ditches carrying the same away, and distributing ditches; and it shall have the right to take from any running stream in the State and store away water not needed for immediate use by any person having a superior right thereto.

Sec. 3. Such corporation may enter upon any land for the purpose of locating a point of diversion of the water and making the necessary surveys for constructing the ditch or other works.

Sec. 4. When a point of diversion shall have been selected such corporation shall post in a conspicuous place thereat a notice in writing containing a statement of the name of the ditch or canal or flume, and of the owner thereof, the point at which its head-gate is proposed to be constructed, a general description of the course of said ditch or canal or flume, the size of the ditch or canal or flume in width and depth, the number of cubic inches of water by miner's measurement under a six inch pressure intended to be appropriated, and the number of reservoirs, if any."

Sec. 5. provides that within ten days from the date of posting such notice the company must file for record in the office of the County Clerk or Recorder of Conveyances a similar notice, together with a map showing the general route of said ditch. Within sixty days from the completion of such works the corporation shall in like manner file a map of definite location of said ditch or works by legal subdivisions of the land traversed thereby.

§ 500. Condemnation of Land Neeled.-Condemnation of Riparian Rights.-Sec. 6 provides whenever any such corporation shall have acquired the right to appropriate water it may proceed to condemn land and premises necessary for right-of way for its ditch or canal or flume, and likewise for its distributing ditches and feeders and sites for reservoirs;

but the right-of-way for the main line of the ditch is limited to one hundred feet in width, and for each distributing ditch or feeder thirty feet in width, and for a site for each reservoir twenty acres from one owner or for every ten thousand inches of water, miner's measurement, or fraction thereof over half of the capacity of the main ditch or canal or flume for every twenty miles of its length.

Sec. 7 provides that if no agreement can be reached between the owner of such lands and the corporation as to the compensation to be paid therefor such corporation may maintain an action in the Circuit Court for the purpose of having such lands appropriated to its use, and for determining the compensation therefor.

Sec. 8. Such corporation may also maintain an action for the condemnation and appropriation of the right to the flow of water in any stream from which it proposes to divert water below the point of diversion vested in the owners of lands lying contiguous to such streams by virtue of their location."

Such actions shall be brought in the county where the lands to be affected are situated. "But no person owning lands lying contiguous to any stream shall without his consent be deprived 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."

§ 501. Completion of Works.-Prior Appropriation.Right to Change Place of Diversion.-Route to be Followed. The Act provides that within six months from the date of posting of notice the actual construction of the works must be commenced and must be prosecuted without intermission except as resulting from the act of God, the elements or unavoidable casualties until the same be completed. "And the actual capacity of said ditch or canal or flume, when completed, shall determine the extent of the appropriation, anything contained in the notice to the contrary notwithstanding." Upon compliance with the provisions of the Act the right to the use of the water appropriated relates back to the date of posting the notice.