the usual amount, 3.65 second feet (date of, tom and crystallized into express law by relative priority 1867), from the waters of statute. It is stated in effect in U. S. v. Rio Willow Creek for the irrigation of the follow- Grande Irrig. Co., 174 U. S. 690, 702, 19 Sup. ing lands: 45.60 acres in the N. 4 of the Ct. 770, 43 L. Ed. 1136, that this rule obtains N. 4 of section 23, 88.68 acres in section 5, in those states in the United States which 36 acres in section 13, 41 acres in section 25, have simply adopted the common law. It all in township 16 S., range 43 E., W. M., is also true undoubtedly that a state may and 80.74 acres in section 15, township 17 S., change its common-law rule as to every range 44 E., W. M. This is a reasonable stream within its dominion and permit the use of the water for the irrigation of such appropriation of the flowing waters for such lands. We deem the conditions as to these purposes as it deems wise. In the absence of lands, as shown by the evidence, to be ex- the consent of Congress this authority is limceptional, and believe the right of all will ited: (1) So that the state cannot destroy in this manner be conserved. This may en- the right of the United States to water nectail the expense of installing measuring de essary for beneficial uses for government vices and slight inconvenience of trivial property; and (2) it is limited by the supeconsequence, to which question we have al- rior power of the general government to preready alluded. The methods relied upon by vent interference with the navigation of navthe Eastern Oregon Land Company in the igable-streams. use of water, as well as similar use made by other irrigators in former years, is wasteful. It is often permitted as a privilege and not as a right, while it can be exercised without injury to any one. Hough v. Porter, supra. The laws of the state and public policy alike demand that all waters available for irrigation purposes must be conserved and used in a manner that will permit of the highest development of the agricultural and other resources of the state. The best methods for the application of water to the land should be used. No person should be allowed more water than is necessary when applied by a proper system; this, in order that a larger area may be made productive by the extended application of such water. the rights adjudicated in these proceedings are subject to this rule. All [19] In support of its claim the company contends that the law of riparian rights recognized in this state at the time the appellants' land passed out of the government should govern their rights and cannot be affected by appropriations made subsequent to that time except as such appropriation rights have become vested by consent, purchase, or adverse user. The common-law rule as to a riparian owner is stated by Chancellor Kent (3 Kent's Com. § 439) as follows: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct, while it passes along. Aqua currit et debet currere ut currere solebat' is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.' This rule prevails in the state of Oregon only to a limited extent. The old rule of In 1891 the Legislature of this state passed an act (Laws 1891, p. 52) declaring that the use of the waters of the lakes and run ning streams of the state of Oregon for general rental, sale, or distribution, for purposes of irrigation, for household and domestic consumption and watering live stock upon dry land of the state is a public use, and the right to collect rents or compensation for such use of the water is a franchise, and granting to corporations organized for such purposes the right to appropriate water and condemn the rights of riparian proprietors upon the lake or stream from which such appropriation is made. This right to condemn has been exercised. Umatilla Irrig. Co. v. Barnhart, 22 Or. 389, 30 Pac. 37. By Act Cong. July 26, 1866, c. 262, 14 Stat. 253, § 9, section 2339, R. S. U. S., 7 Fed. Stat. Ann. 1090, 1093 (U. S. Comp. St. 1913, § 4647), whenever rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued by priority of possession and are acknowledged by local customs, laws, and decisions of courts, the same are recognized and protected. This act established no new right. The practical construction of this statute has been that as long as the land belonged to the United States the water flowing over the same was subject to appropriation for any of the purposes named when such appropriation was recognized by the local customs, laws, or decisions of the courts; but if the water was not so appropriated, it was not subject to appropriation after the land over which it flowed became private property. Davis v. Chamberlain, 51 Or. 304, 315, 98 Pac. 154; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790; Rio Grande Western R. R. Co. v. Telluride P. & T. Co., 16 Utah, 125, 137, 51 Pac. 146; Benton v. Johncox, 17 Wash. 277, 287, 49 Pac. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761. [20] By Act March 3, 1877, c. 107, 19 Stat. Stat. Ann. 392 (U. S. Comp. St. 1913, §§ 4674-tity, depending upon the use by other pro4680) it was provided in part as follows: prietors and whether its use by him will be an injury to them. The doctrine of prior appropriation and riparian rights is not so antagonistic that they may not exist in the same locality. A settler on a nonnavigable stream has the election either to rely upon his rights as riparian proprietor or to make an appropriation of the water and claim as an appropriator, but he cannot do both. Williams v. Altnow, 51 Or. 277, 300, 95 Pac. 200, 97 Pac. 539; Crawford v. Hathaway, 60 Neb. 754, 84 N. W. 271; Id., 61 Neb. 317, 85 N. W. 303; Id., 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. "That the right to the use of water by the person so conducting the same, on or to any tract of desert land of 640 acres, shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and 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." Title to the land of the Eastern Oregon Land Company passed from the government prior to this act; therefore its rights are not affected thereby. Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728. [21] It is said by Judge Bean, in the case of E. O. L. Co. v. Willow River Land & Irrig. Co., decided by the Circuit Court of the United States for the District of Oregon, November 10, 1910, 187 Fed. 466: "The general doctrine of riparian rights is too firmly established in this state to be shaken now by judicial decision. It is useless to cite authorities. The riparian proprietor is entitled to the ordinary flow of a stream as long as it is of any beneficial use to him, and this may, under some circumstances, include flood or overflow waters ipated during ordinary seasons." to be antic Pacific Live Stock Co. v. Davis, 60 Or. 258, 119 Pac. 147, was a case in which the conditions and the location of the land were very much like those in the case at bar. A riparian proprietor cannot lay claim to the undiminished flow of a stream without actual use simply because it adds beauty to the outlook. 4 Kinney on Irr. § 1975 A riparian owner's right to water for irrigation is limited to the amount of water needed and used, so that, to determine that fact, the amount of land irrigated, the character of the soil, and the amount of water needed per acre must be known. Hedges v. Riddle, 63 Or. 257, 127 Pac. 548. [22] In Jones v. Conn, 39 Or. 30, 64 Pac. 855, 65 Pac. 1068, 87 Am. St. Rep. 634, 54 L R. A. 630, it was held in a controversy between riparian proprietors upon a natural water course, that a riparian proprietor has a right to the use and enjoyment of the water that naturally flows past or through his land, subject to the right of other riparian owners to a reasonable use thereof for domestic, agricultural, and manufacturing purposes, provided that the upper proprietor does not appropriate enough to substantially injure the common right which each proprietor has. The nature and extent of the right of a riparian proprietor to the water of a stream for irrigation cannot be measured by any definite or fixed rule, nor can the amount of water which he is entitled to use for that purpose ordinarily be definitely determined; it being necessarily a varying quan [23] Every riparian proprietor is entitled, as against other riparian proprietors, to a reasonable use of the water of a nonnavigable stream flowing through his land, and after the natural wants of all have been supplied he may make a reasonable use of the surplus for irrigation purposes when he can do so without infringing upon the corresponding rights of the other proprietors. Jones v. Conn, 39 Or. 30, 64 Pac. 855, 65 Pac. 1068, 54 L. R. A. 630, 87 Am. St. Rep. 634. See, also, Little Walla Walla Irr. Co. v. Finis Irr. Co., 62 Or. 348, 124 Pac. 666, 125 Pac. 270; Sherred v. Baker, 63 Or. 28, 125 Pac. 826. It was held in Caviness v. La Grande, 60 Or. 410, 421, 119 Pac. 731, 735, that: "In the very nature of things, a court cannot fix in advance by its decree what quantity of water will be reasonable in the future for the use of a riparian proprietor claiming the duty of water in that character." Our statute was copied largely from the statute of Wyoming, though the Constitution of that state differs from ours in that riparian rights have never been recognized. [24] In the arid and semiarid lands of the West the early home builders first settled upon the streams and other bodies of water. The rights of such people to a reasonable use and benefit of the water flowing over their lands which they have appropriated or used for a beneficial purpose should be carefully considered and not abrogated. Those obtaining title to land take the same subject to the laws then prevailing and defining the appurtenances thereto. When such rights have become vested, they cannot be taken away by legislative enactment nor judicial decree. Like all property they are subject to reasonable regulation. In this proceeding the Eastern Oregon Land Company should be awarded no additional use of water, not having shown that it has ever applied to a beneficial purpose any of the water of such stream in excess of the amounts above specified, or that it desired or intended to do so, and not having shown what part of its other land is susceptible of irrigation. L. O. L. § 6595, subd. 2. [25] It is contended that the water board proceeded irregularly and exercised its functions erroneously in not requiring evidence in support of the statement of claims submit ted under section 14, and that this was sanc- [required for the growing crops, that is, that tioned by the trial court. The board was not irrigation should not be allowed except when governed entirely by such statements. The crops are being grown upon the land. We canmaps, plats, and records of the investigation not accede to this contention. While irrigamade by the state engineer in the matter un- tion is for the purpose of growing and maturder consideration are prima facie evidence; ing crops, trees, grasses, etc., yet such use is therefore there was some evidence in regard the ultimate purpose of watering the land to such claims before the board. It would when the water can be obtained, even though seem that if any error in this respect was it be prior to the growth of the crops, or what committed, it was cured by the subsequent is usually called winter irrigation. It has long taking of over 1,800 typewritten pages of tes-been the custom of the people residing upon timony in the proceeding. Otherwise, if any party has not been fully heard, he should make proper application for such hearing. the stream system to irrigate their lands preparatory to raising crops thereon during the season of high water, or the so-called flood season. So long as the water is used without unnecessary waste thereof, the people should not be deprived of this right. [28] In finding No. 22 there appears to be a clerical error in the description of a barrel siphon of the Willow River Land & Irrigation Company. It is described as carrying 50 second feet of water from the canal to Reservoir No. 1. This is corrected to read 200 second feet. The water board found that the Willow River Land & Irrigation Company was entitled to a priority as of 1873 to the water used in what is known as the "Company Ditch." The circuit court changed this date of priority to 1877. The record shows that the ditch was commenced late in the fall of 1872, was constructed about halfway down in 1873, and extended and completed in 1877. This appellant asks that the doctrine of relation be applied. In the adjudication of water rights this doctrine has frequently been applied by this court. In Whited v. Cavin, 55 Or. 98, 105 Pac. 396, this court said: [26] The board of control in its order of determination fixed two limitations on the amount of water to which an appropriator should be entitled, namely, a continuous flow of not to exceed 1/80 of a second foot for each acre of land or an amount equal thereto distributed under the rotation system. The circuit court eliminated the provision limiting each appropriator to 1/80 of a cubic foot per second, and left but one limitation of 3 acre feet per acre during the irrigating season. We recognize the great difficulty in establishing the duty of water. Willow creek is a perennial stream, and as soon as the spring floods are over the creek is dry and there is not sufficient water to irrigate any large body of land without storage. The time of these floods varies according to the time of the spring thaws of each season. In order to irrigate the lands during the time such water is running, it is necessary to have a sufficient head of water to saturate each parcel quickly. The water board found that 3 acre feet of water is sufficient with which to irrigate 1 acre of land during any irrigating season; that a flow of 1/80 of a second foot for a period of four months will supply such an amount. It is shown by the evidence that during a considerable portion of such four months there is but very little water in the creek for irrigation purposes, and in order that a proper use may be made of the water during the socalled flood season, we deem it necessary to allow a larger amount to be used during such time. In order to properly regulate the use of the water of this stream it is necessary to place some restriction upon the amount to be used at any one time; therefore, for the lands to be irrigated as provided for in these proceedings, the amount of water is limited to a continuous flow not to exceed 1/40 of a second foot for each acre of land during the irrigating season until the first day of May of each year, and thereafter during the remainder of the irrigating season the amount of water is limited to a continuous flow of This company is the owner of what is not to exceed 1/so of a second foot for each known as the "Willow River Project," conacre of land, not to exceed 3 acre feet per sisting of reservoirs for storing and conservacre during any irrigating season. The pro-ing the waters of Willow creek and its tribuvision made by the board of control for a taries and an extensive system of canals and rotation system is approved. [27] It is urged that the irrigation season "Arrangements were made in 1883, whereby the plaintiffs joined in the enlargement and exand the work of enlarging and extending it, to tension of the ditch begun by Whited in 1881, cover their lands, was diligently prosecuted until its completion, which was accomplished withThis, we believe, in view of the difficulties enin four years from the commencement thereof. countered in its construction, and other circumstances disclosed by the record, was within a reasonable time. # * It is well settled in this state that, under such circumstances, plaintiffs' rights relate back to the commencement of their work in 1883. See, also, Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472, 60 Am. St. Rep. 777; 2 Kinney on Irr. & Water Rights (2d Ed.) § 744. It is not questioned but that the work was prosecuted with reasonable diligence, taking into consideration the surrounding conditions at that time. The priority for this ditch as fixed by the water board as of 1873 is approved. Willow River Land & Irrigation Company. distributing ditches, together with several thousand acres of land, representing an ex a half mile from the creek. This clearly indicates a clerical error. In the absence of any intervening right which had been prejudiced on account of such a defect we hold the notice to be sufficient. [30] It is also contended that the Willow River Land & Irrigation Company failed to comply with section 6529, L. O. L., requiring a map to be filed, and that the general route of the ditch or canal as described in the notice was not followed in the construction of the canal. Subdivision 7 of section 6595, L. O. L., provides: "And where appropriations of water heretofore attempted have been undertaken in good faith, and the work of construction or improvement thereunder has been in good faith commenced and diligently prosecuted, such appropriations shall not be set aside or avoided, in proceedings under this act, because of any irregularity or insufficiency of the notice by law, or in the manner of posting, recording, or publication thereof." and irrigation system. The system is substantially completed. It was constructed for the purpose of extending the use of the waters appropriated to the reclamation of large tracts of arid lands not heretofore irrigated. The company is now enlarging and extending a large reservoir generally known as the "Upper Reservoir," or "Reservoir No. 3." The dam and outlet is constructed across the main channel of Willow creek, and from the dam the reservoir extends in a northwesterly direction on either side of the creek, covering an area of more than 1,200 acres and having a storage capacity, when fully completed, of approximately 57,000 acre feet. From this reservoir the waters will be discharged into the main channel of Willow creek and carried to what is commonly known as "Reservoir No. 2," the dam of which is constructed across the main channel of Willow creek at which point the waters stored in reservoir No. 3, and other waters flowing in the creek, are diverted to a canal running in a south- The informalities in the proceedings taken easterly direction from the dam on the west- to appropriate the water of Willow creek by erly side of Willow creek, with a capacity of the Willow River Land & Irrigation Com200 cubic feet per second. This canal, which pany under the old law were cured by the continues in a southerly and southeasterly subdivision set forth above. We think it is direction, divides into two branches, one of shown by the testimony that the appropriawhich is known as the "High Line Canal" tions of water made by this company were with a carrying capacity of 50 cubic feet per undertaken in good faith, and that construcsecond, and the other, known as the "Low tion was commenced and diligently prosecutLine Canal," continues in a southerly direc-ed. It is undisputed that the company extion, with a capacity of 200 cubic feet per sec-pended about $1,200,000 on the irrigation sysond to a reservoir known as "Pole Creek Reservoir." The works consist of flumes, siphons, canals, numerous laterals and service ditches for the purpose of distributing the waters to about 20,000 acres of land. This company has also constructed ditches and canals diverting the waters of Black creek and Pole creek. It also has a canal carrying the water from its Low Line canal to the head of what is commonly known as the "Lockett" or "Company Ditch." [29] The Eastern Oregon Land Company and the Lower Willow Creek Water Users' Association object to the sufficiency of the notice of appropriation by the Willow River Land & Irrigation Company, upon which the latter bases its rights to a considerable extent. In August, 1910, an amended notice was filed perfecting the former. Similar objections to this notice were urged before the United States Courts for the District of Oregon in Eastern Oregon Land Co. v. Willow River Land & Irrig. Co. (C. C.) 187 Fed. 466, and in the same case on appeal before the Circuit Court of Appeals, 204 Fed. 516, 122 C. C. A. 636. The notice was held sufficient. It specifies the point of diversion, which it is claimed is not sufficiently specific, as the S. W. 4 of the N. W. 4 of section 27, when it should have been the S. W. 4 of the S. W. 14 of that section. The map in evidence shows that the only portion of section 27 crossed or approached by the creek is the S. W. 4 of the S. W. 4, and that the S. W. 4 of the N. W. 4 of that section is nearly tem. The law of 1891, under which the proceedings by the Willow River Land & Irrigation Company were commenced, provides that the notice shall contain a general description of the course of the ditch or canal or flume, and that a map shall be filed show ing the general route. This statute does not require the corporation in its notice of appropriation to fix upon a precise line upon which to construct its ditch or canal, but requires only a general description. It appears that changes were made on account of the grades in the line of the ditch. It, however, follows the general direction contained in the notice which is a substantial compliance with the statute. Such notices are liberally construed. Osgood v. Water & Min. Co., 56 Cal. 571, 579. We fail to find that any other appropriation or location of a ditch has been made which conflicts with those in question, or that any intervening rights have been prejudiced in any way by a deviation in the line of canal from that mentioned in the notice. [31] The Willow River Land & Irrigation Company appeals and assigns as error the decree of the circuit court that an appropriator cannot, during the irrigation season, store water under his appropriation for beneficial use later in the season. The water board found and ordered: "That in all cases where water is stored by any claimant herein, said water shall be taken cording to the dates of relative priority, as hereat any season of the year for said storage acin set forth. We approve this finding, and it should be carried into effect. The circuit court decreed: "After the irrigating season begins, it appears from the evidence that all of the natural flow of Willow creek is demanded for irrigation of premises of the respective claimants of the water of said stream for irrigation; therefore the entire flow of Willow creek after the irrigation season opens shall be used for irrigation purposes until the amount to which each user is entitled has been supplied according to his priority. Any surplus amount over the combined needs of the water users from this stream for irrigation during the irrigation season may be stored as surplus water.' This appellant complains that the above clause of the decree ignores the priority of right and is in conflict with the order of the board. We doubt if such was the intention of the trial court. In order to carry out the order of the board of control, this finding may be changed so as to be in substance as follows: The entire flow of Willow creek after the irrigation season opens shall be used for irrigation purposes to the extent of the amount to which each user is entitled by a priority of right. Any surplus amount over the combined needs and use of the water users from this stream having a prior right for irrigation during the irrigation season may be stored as surplus water. This is in conformity with section 6526, L. O. L., which provides that an irrigation company constructing a reservoir "shall have the right to take from any running stream in this state and store away any water not needed for immediate use by any person having a superior right thereto." [32] With this question are raised two others, namely: (1) Can the Willow River Company store during any part of the irrigating season the water to which it is entitled under its early priorities, and use such water later in the same season to irrigate the lands to which the board of control decreed such water? In other words, can an appropriator store water he may not be able to use economically in February or March for use in July and August on the same land? (2) If the company has the right to store any part of the water which is decreed to it under these early rights, can it, with the consent of its water users, apply such stored water to the irrigation of any land under its canals, provided the amount so stored out of such appropriations, together with the amount used for direct irrigation under such appropriations without first being stored, does not aggregate more than 3 acre feet per acre, based on the acreage to which such water was appurtenant under the decree, or on which such appropriations rest? In the arid states the principle is gaining ground "that the right to use the water for irrigation inheres in the land irrigated," and is inseparable therefrom or separable only with permission of the water board or like authority. Wiel on Water Rights (3d Ed.) § 282. Indiscriminate changes should not be permitted, injure the rights of others. Wiel, § 508. Section 6668, L. O. L., provides in part as follows: "All water used in this state for irrigation purposes shall remain appurtenant to the land any reason it should at any time become imprac upon which it is used; provided, that if for ticable to beneficially or economically use water for the irrigation of any land to which the water is appurtenant, said right may be severed from said land, and simultaneously transferred, and become appurtenant to other land, without losing priority of right theretofore established, if such change can be made without detriment to existing rights, on the approval of an ap plication of the owner to the board of control." It is contended by this appellant that, by the board ordaining that "the priorities herein confirmed confer no right to the use of the waters of said stream and its tributaries, on the lands other than those specific tracts to which such rights of appropriation are herein set forth as appurtenant," the statute of 1909 is thereby given such a construction as to divest the appellant of property rights acquired many years before. 2 Kinney on Irrigation & Water Rights, § 768 (2d Ed.) says: "The owner may change the use of the water change does not interfere with the vested rights to any other beneficial use, so long as the of others." See, also, Seven Lakes Reservoir Co. v. New Loveland & G. Irrig. & Land Co., 40 Colo. 382, at page 384, 93 Pac. 485, at page 486, 17 L. R. A. (N. S.) 329. At page 331 of the last-named report, the court said: right, which is the subject of purchase and sale, "A priority to the use of water is a property and its character and method of use may be changed, provided such change does not injuriously affect the rights of others." In Wimer v. Simmons, 27 Or. 1, 39 Pac. 6, 50 Am. St. Rep. 685, Mr. Justice Wolverton said: "A valid appropriation having once been made of the water of a stream, it becomes a pertinent inquiry whether it is permissible to change the place of its use. Undoubtedly there could be no objection to such change where it does not injuriously affect third parties. The doctrine that a prior appropriator for the purposes of irrigation may change the place of its use is recognized by this court in Cole v. Logan, 24 Or. 304, 313, 33 Pac. 568." * It would seem that the main purpose of said portion of section 6668 is to make provision for preserving the record of water rights which have been adjudicated, and require one changing the use to make an application therefor to the water board. Otherwise the record of adjudicated water rights would become confused and worthless. It is not the purport of this statute to divest any one of a water right. The same effect should be given to the order of the water board. It appears that it would be impracticable for the claimant at all times to use the amount of water awarded, by direct irrigation, without losing the benefit of its storage system to that extent. As long as no more water is taken from the stream than the claimant is entitled to at the time, and as it |