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Home > Journals > Michigan Law Review > MLR > Volume 35 > Issue 1 (1936)

 

Abstract

A special master appointed by the Court after the filing of a bill by the state of Washington praying an injunction against the state of Oregon found that inhabitants of Oregon had been diverting water from the Walla Walla River, a non-navigable stream, by means of a dam for over fifty years for use in irrigating their lands which would otherwise be arid and had been for a long time pumping some nine thousand acre feet of water per annum from wells bored on their lands. The state of Washington claimed this diversion materially injured an irrigation project known as the Gardenas Farms which had been declared by a Washington decree of 1928 to have a prior appropriation claim on the waters as of 1 892 because it had posted notice of intention to divert in that year, but which had not been actually started until 1903 and had laid no claim to the water in question until 1930. The master further found that an injunction against the stream diversion would ruin the Oregon farmers and give the Washington project very little more water because the bed of the river between them would tend to soak up almost the entire flow during the dry season. He also found that there was no satisfactory proof that the pumping from the wells injured the plaintiff materially. The parties stipulated for the application of the doctrine of prior appropriation. The Supreme Court, in an opinion by Mr. Justice Cardozo, dismissed the bill, saying the Washington decree of 1928 as to priority had no effect on persons and states not parties to the proceeding, that prior appropriation was lost by the Gardenas project by laches, and that the plaintiff had not shown serious enough injury in any event to warrant enjoining a private person, much less a state. Washington v. Oregon, 297 U.S. 517, 56 S. Ct. 540 (1936).

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