<p>Waters — Appropriation.—Riparian Rights — Injunction.</p> <p>1. While one may maintain either his riparian right or his right as an appropriator, he cannot claim title to water in both characters, the assumption of one being the abandonment of the other, hence one claiming 500 miners’ inches of the water of a stream, and attempting to enjoin others from in any way hindering the entire flow, will he held to he asserting rights as an appropriator hy which alone an exclusive use can he had, and not as a riparian proprietor.</p> <p>Waters — Injunction—Evidence.</p> <p>2. The drastic remedy of injunction will not he granted to protect water rights, unless, not only the appropriation hy notice, hut also the actual application of the water to the intended use and the necessity of the use for the purposes in question, he clearly shown.</p>
Cited by 1 later decisions — most recently March 1917
¶2We will first consider the nature of the claim stated in the complaint. Treating of a riparian right, the Supreme Court of Massachusetts says:
“This is a common right, and each must exercise it with due regard to the rights of others, and each must submit to that degree of inconvenience and hardship in his exercise of his rights which results from the existence of like rights in. others. In such cases each proprietor is *395entitled to the use of the stream in such reasonable manner according to the usages and wants of the community as will not be inconsistent with a like use by other proprietors above or below him.” Parker v. American Co., 195 Mass. 591 (81 N. E. 468: 10 L. R. A. [N. S.] 584).
¶31. We learn from this statement of the doctrine that a riparian right is analogous to tenancy in common, and that the enjoyment of the water by a mere riparian owner is subject to like enjoyment by other owners of the same class above and below him. When a person has appropriated to his exclusive use a fixed quantity of water and proposes to maintain that holding against all comers, he abandons the role of riparian owner, and assumes that of a tenant in severalty. It is an established rule in this State that, while one may maintain his riparian right or his right as an appropriator, he cannot claim title to water in both characters. The assumption of one is the abandonment of the other. Low v. Schaffer, 24 Or. 239 (23 Pac. 678) ; North Powder Milling Co. v. Coughanour, 34 Or. 9 (54 Pac. 223) ; Brown v. Baker, 39 Or. 66 (65 Pac. 799: 66 Pac. 193) ; Davis v. Chamberlain, 51 Or. 304 (98 Pac. 154) ; Caviness v. La Grande Irrigation Co., 60 Or. 410 (119 Pac. 731). We conclude, therefore, that by claiming the fixed amount of 500 inches, miner’s measurement, of the waters of Elk Creek, the plaintiffs are asserting rights as appropriators, and not as riparian proprietors, and must be therefore treated as assuming the former character.
¶42. On the question of priority of appropriation the testimony is indefinite and uncertain. It is true the plaintiff gave testimony tending to show that on November 27, 1872, their predecessor in title posted a notice locating and appropriating 500 inches of the waters of Elk Creek for agricultural, mechanical, and other purposes to be conveyed in a ditch to the ranch known as the Frank Fulford ranch. All that can be claimed, how*396ever, for this notice is that it was the initiatory step in the process. What amount of water was actually appropriated and conducted through the ditches to plaintiffs’ premises, and whether or not the amount diverted was necessary for the purposes in question, are elements not shown to a sufficient certainty by the testimony to authorize the employment of the drastic remedy of injunction. The same may be said of the case made by each of the answering defendants. All the parties contesting appear to have used more or less of the water since the early 70’s up to the present time, and disputes have arisen among them only when the progress of the country began to increase their acreage of crops, requiring a greater amount of irrigation. Within the principles announced in Porter v. Pettengill, 57 Or. 247 (110 Pac. 393); Andrews v. Donnelly, 59 Or. 138 (116 Pac. 569); and Hedges v. Riddle, 63 Or. 257 (127 Pac. 548), we deem the evidence too uncertain to support the remedy of injunction.
¶5The suit is therefore dismissed without costs in this court, and without prejudice to either of the appealing parties as among themselves. Dismissed.
