September October 2017

18 The Oregon Surveyor | Vol. 40, No. 5 Water Rights Quiz The Court began by confirming the validity of the 1864 conveyance, which be- stowed water rights along with real property upon the predecessors of Gardner. Despite the fact that Estes held no legal title whatsoever, to any land or any wa- ter, until 1878, the deed he executed in 1864 was nonetheless legitimate, the Court clarified, under the after-acquired title principle, which stipulates that any title acquired by a grantor after he has conveyed his property inures to the ben- efit of his grantee. Thus the 1864 deed conveyed both inchoate land rights and inchoate water rights, which had been legitimately established by Estes, as a bona fide settler upon the public domain, through appropriation, and which then became property of Gardner’s predecessors, upon the execution of the 1864 conveyance. The Court acknowledged however, that although the relevant lands were part of the public domain until the US patent was issued to Estes in 1878, adverse rights can accrue between private parties upon public land, even while legal title to the subject property remains in federal ownership. Private acts upon public land can- not legally impact public title, but such acts can impact the rights of other private parties, the Court recognized, in accord with long established Oregon precedent to that effect, making it necessary to examine the legal consequences of the sub- sequent acts of the parties, to determine the ultimate fate of the water rights which had been conveyed by Estes in 1864. Between 1866 and 1872, the Court noted, Estes began making greater use of the water from the creek, while little if any of that water was put to use upon the property which he had deeded to Gordon and Manville in 1864. This actual use of the water by Estes, the Court observed, was made in derogation of the water rights which he had thus conveyed, and was therefore adverse in nature to the rights of his 1864 grantees. The Court rejected the concept that acts of a grantor can never be adverse to his grantee, declining to apply that premise to this sce- nario, and also rejected the suggestion that rights adversely acquired by a grantor subsequent to a conveyance are within the scope of the after-acquired title rule, and thus pass directly to his grantee. If the evidence revealed adverse use of the creek water for a statutory 10 year period, the Court thus concluded, the water rights which arose in 1864 had ceased to exist. By 1872, Estes was making intensive use of the water, leaving no water in the creek for most of each year, and at that time he made a renewed declaration of his right to use all of the water, thus the Court identified that date as the point at which his water usage plainly became openly adverse in nature. Gardner re- sponded by pointing out that Estes had not used all of the water at all times, suggesting that his water usage was never truly adverse because he had not fully monopolized and consumed every bit of the water, instead he had allowed some The Ruling of the Supreme Court of Oregon in Gardner v Wright (91 P 286 - 1907) Continued from page 17 T