U.S. Supreme Court CALIFORNIA OREGON POWER CO. v. BEAVER PORTLAND CEMENT CO., 295 U.S. 142 (1935)

295 U.S. 142

CALIFORNIA OREGON POWER CO. v. BEAVER PORTLAND CEMENT CO. et al. No. 612. Argued April 5, 8, 1935. Decided April 29, 1935.[ California Oregon Power Co. v. Beaver

[Page 295 U.S. 142, 165]

The public interest in such state control in the arid land states is definite and substantial. In Clark v. Nash, 198 U.S. 361, 370, 25 S.Ct. 676, 679, 4 Ann.Cas. 1171, this court accepted that view to the extent of holding that in the arid land states the use of water for irrigation, although by a private individual, is a public use; and sustained as constitutional a state statute which, for purposes of irrigation, permitted an individual to condemn a right of way for enlarging a ditch across the land of another. Mr. Justice Peckham, delivering the opinion of the court, said: 'The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous states of the West that they are in the states of the East. These rights have been altered by many of the Western states by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the states of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those states, arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This court must recognize the difference of climate and soil, which render necessary these different laws in the states so situated.'

For the foregoing reasons, we affirm the decree of the court below, passing without consideration the second question discussed by that court and upon which its decision rested, as to which we express no opinion.

Decree affirmed. Footnotes

Footnote 1 Later to become the states of North and South Dakota.

Footnote 2 In this connection it is not without significance that Congress, since the passage of the Desert Land Act, has repeatedly recognized the supremacy of state law in respect of the acquisition of water for the reclamation of public lands of the United States and lands of its Indian wards. Two examples may be cited:

The Reclamation Act of 1902, c. 1093, 32 Stat. 388, directed the Secretary of the Interior (section 8 (43 USCA 383)) to proceed in conformity to the state laws in carrying out the provisions of the act, and provided that nothing in the act should be construed as affecting or intending to affect or in any way interfere with the laws of any state or territory 'relating to the control, appropriation, use, or distribution of water used in irrigation.'

The Act of June 21, 1906, c. 3504, 34 Stat. 325, 375, made an appropriation for constructing irrigation systems to irrigate lands of the Uncompahgre, Uintah, and White River Utes in Utah, with the proviso that 'such irrigation systems shall be constructed and completed and held and operated, and water therefor appropriated under the laws of the State of Utah,' etc. This was amended by the Indian Appropriation Act of March 3, 1909, c. 263, 35 Stat. 781, 812, which again recognized the supremacy of the laws of Utah in respect of appropriation, and provided that the appropriation should 'be used only in the event of failure to procure from the State of Utah or its officers an extension of time in which to make final proof for waters appropriated for the benefit of the Indians.'