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

A popular boat launch on the non-navigable Rogue River, from which so people every year launch small craft to navigate the non-navigable Wild & Scenic River to its end in the Pacific Ocean, that one needs a reservation to do so.

California Oregon Power Company v. Beaver Portland Cement Company, 


The Facts

California Oregon Power Company v. Beaver Portland Cement Company doesn't involve the Clean Water Act, as it was decided almost 40 years before the act was adopted in ints substantially modern form. It does, however have a great deal to do with water use in the United States, including vastly important issues spanning water quality, mining, agriculture and municipal water supplies. Ever wonder why they needed all those orange orchards in Chinatown? Because California Oregon Power Company officially severed water rights from real property rights and freed western states to appropriate water in rivers to senior permittees

The Rogue River is a non-navigable river in southern Oregon. California Oregon Power was a power company that owned land on the east side of the river in Gold Hill, Oregon, home of the Oregon Vortex & House of Mystery (the reader's guess is as good as the author's). Their title originated from a grant from the federal government under one of the Homestead Acts.They built the Gold Ray Dam and used the river's flow to generate electricity, which must still have been pretty novel at the time. None of California Oregon Power’s predecessors ever diverted the river’s waters from the channel in order to apply them to a beneficial use.

California Oregon Power's dam in Gold Hill Oregon in 1912. The image is hosted at The Oregon Encyclopedia, a project of the Oregon Historical Society 

Beaver Portland Cement (Portland Cement has nothing to do with Portland, Oregon - a fact your author learned distressingly late in life, despite going to law school in Portland, Oregon and reading this case there) bought some land from Gold Hill on the west side of the river, across the way for California Oregon Power. Beaver obtained water rights from the state engineer. Their plan was to blast the river to free the channel and acquire aggregate to build their own dam. Beaver’s operations would ruin California Oregon Power’s business.
California Oregon believed they have a right to the river’s unimpeded flow as a riparian owner under the common law natural flow doctrine. Beaver, however, believed they had the right to divert the river’s water because of their adjudicated water right under Oregon state law. Did California Oregon receive the right to unimpeded flow under the Homestead Acts, or can Oregon statutes grant consumptive water rights to permitted users?

The non-navigable Rogue River, from an image hosted at Momentum River Expeditions, one of many, many tour operators on the non-navigable Rogue River, which is one of the most popular boating destinations in the country

The Law

Generally speaking, the United States has two ways of determining who gets to use water, how much and where. 

Riparian Water Law

The United States inherited common law water regulatory principles from Britain. There, waterways were used for drinking, navigation, fishing, watering livestock and powering mills; consequently, English law prioritized those uses. The public trust doctrine ensured public rights to boat and fish. As for drinking, watering livestock and powering mills, courts determined that riparian property owners, those lucky folks who owned real property that abutted waterbodies, could use as much water for domestic purposes as they wanted, and could otherwise use water to the extent that it didn’t diminish the flow enjoyed by other riparian property owners. This worked great in Britain, where fairly wet weather meant that irrigation wasn’t necessary to grow food, and it worked quite well in the original thirteen colonies where that was also true.

Prior Appropriation Water Law

Once the United States began to expand westward, settlers found that while the west has many very grand rivers, a lot of land west of the Mississippi was arid to the point of being useless for agriculture without irrigation. Old-timey miners similarly often needed water far away from where it was naturally located. Even if you could divert water from riparian property you owned, water used in mining and irrigation is consumed, meaning that return flow - if any - would be far less that was removed, as water was metabolized by plants, evaporated, sank into the ground or ran off into a different watershed than from where it was removed.

A very grand wester river, far from fertile cropland, photographed by your author in Canyonlands National Park, Utah

Folks in Colorado especially, but increasingly throughout western states, came up with a new way of adjudicating water rights, that became known as Prior Appropriation doctrine. Prior Appropriation divorced water rights from riparian property ownership. To perfect a water right, you had to do three things: (1) demonstrate your intent to use water (2) actually divert the water from the waterbody and (3) put the water to a beneficial use. Once this was established, the appropriator was entitled to that amount of water in perpetuity - so long as she continued to use it. Where disputes arose, the doctrine follows a-first-in-time-first-in-right rule, and there is no sharing: Senior water users get to use their entire allotment before junior users get anything; if there is any water left when the first guy is done, the next most senior user gets her whole allotment and so on until everyone is satisfied or there is no water left. If your way of using water doesn’t actually divert the water - too bad, so sad! you have no legal protections under classic prior appropriation.

The Question Presented

Back in 1935 the import of which doctrine applies to California Oregon and Beaver is apparent: if the Court applies riparian water law, California Oregon power wins, because they are entitled to the natural flow of the river; if the court applies prior appropriation water law, Beaver wins because California Oregon Power never established a consumptive water right. To decide which rule to apply, the Court needed to decide whether California Oregon Power’s inherited grant from the United States included a right to the natural flow of the Rogue. The District Court ruled, and the 9th Circuit affirmed, that the Homestead Acts granted California Oregon common law riparian rights, but that this substantial property right was subject to the state’s police power.

The question with which we are here primarily concerned is whether, in the light of pertinent history, of the conditions which existed in the arid and semiarid land states, of the practice and attitude of the federal government, and of the congressional legislation prior to 1885, the homestead patent in question carried with it as part of the granted estate the common law rights which attach to riparian proprietorship. (295 U.S. 153-154)

The Opinion


Beaver wins a under unanimous opinion by Associate Justice George Sutherland,
Associate Justice George Sutherland,
hosted at oyez.org

Justice Sutherland writes for at length, often quite floridly, about the history of and necessity for prior appropriation water law in much of the west. I mean, this is some Cormac McCarthy right here:

In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed dry and desolate lands into green fields and leafy orchards. (295 U.S. 156-157)

Oregon’s court water rights decisions before the 1909 State Water Code was adopted were inconsistent, but the code itself opened all the state’s water to appropriation for a beneficial use except for where appropriation would impair a vested right. Is Oregon California’s use of the free flowing rogue a vested right?

The heart of the decision lies in Justice Sutherland’s analysis of various public lands divestment laws and how they show a federal intention to adhere to local rules. The Act of 1866 acknowledges and confirms local customs, laws and court decisions concerning ditch and canal construction. The Act of 1870 confirms that patents granted and homesteads allowed are subject to vested and accrued water rights. Most explicitly, the Desert Land Act states that water rights in California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, North Dakota and South Dakota depend upon bona fide appropriation, and that waters not at that time appropriated remain open for future appropriation for irrigation, mining and manufacturing.

The streams and other sources of supply from which this water must come was separated from one another by wide stretches of parched and barren land which never could be made to produce agricultural crops except by the transmission of water for long distances and its entire consumption in the processes of irrigation. Necessarily, that involved the complete subordination of the common law doctrine of riparian rights to that of appropriation. And this substitution of the rule of appropriation for that of the common law was to have momentous consequences. It became the determining factor in the long struggle to expunge from our vocabulary the legend "Great American Desert," which was spread in large letters across the face of the old maps of the far west. (295 U.S. 157-158)


Where else would you go for a map like this, other than Cowboy Bob's Dictionary?

The Court found congress intended to completely replace riparian property rights with prior appropriation water rights on public lands conveyed to private ownership in order to promote land development and the reclamation. Congress intended to sever water rights from their common law connection to real property, and all the land it conveyed to private ownership came without riparian rights. Sutherland looked at many other supreme court water law cases and saw nothing conflicting with this determination. Since the federal government owned the public domain, it could dispose of land and water together or separately; the homestead acts and the desert lands act showed a clear intent that land would be patented separately, and that the water rights would remain free for public appropriation as determined by state rules and customs.

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