Chapter 540

1957 REPLACEMENT PART

Distribution of Water Watermasters Change in UseTransfer or Abandonment of Water Rights

WATER DISTRICTS WATERMASTERS 540330 Reservoirs measuring devices effect ofDISTRIBUTION OF WATER GENERALLY noncompliance

540010 Water districts creation purposes540340 Reservoir and diversion dam suitable out

let effect noncompliance540020 Watermasters appointment removal 540350 Dame dikes annd other hydraulic works

State Engineer vested with powers of examination and approval by engineer

540030watermaster

State Engineer general duties regardingapproval not

n

relieve owners of re

sponsibility inspections modificationwater distribution

works hearing540040 Watermasters duties and powers regu 540360 Order to modify appeal

lation and control of supply of water 540370 Enforcing compliance with order or denotice prevention of waste errs

540050 District attorneys to represent State En 540380 Reports of consultants payment

540060gineer and watermasters

Arrest by watermaster complaint against540390 Inspection by engineer upon application

offenderby resident landowner or on own mo

540071 Compensation and traveling expenses ofComP g Ption expenses deposit

worksapplicant

payment by owner of works lienwatermaster suspension of watermaster 540400 Law not applicable to certain works

540080 Employment of assistant watermasters 540410 Use of watercourse to deliver reservoircompensation and expenses termina water notice to watermaster adjusttion of service of assistant watermaster ment of headgates expenses liability

540090 Payment of watermaster by water users for and collection of paymentdemanding his services 540420 Maintenance and operation of jointly

540100 Division of water among claimants pay owned ditches performance by coowner recovery from one in defaultment

540430 Effect of nonpayment by coowner lien on540110 s notice foreclosLien on land and crops interest foreclosure stoppage of deliv

ure attorneysfee ery of water540120 Payment by one water user as giving lien 540440 Owner to clear weeds from ditch right of

on lands of others notice foreclosure way

540130 Advance payment CHANGES IN USE OF WATER

540140 Insufficiency of water for all users pref TRANSFER OF WATER RIGHTS

erence of domestic over agricultural 540510 Appurtenancy of water to premises reuse and agricultural over manufactur strictions on change of use or place ofing use use or point of diversion

540150 Rotation in use notice to watermaster 540520 Application for change of use place of useor point of diversion public notice fil

DISTRIBUTION OF WATER FROM ing of objectionsIRRIGATION DITCHES AND RESERVOIRS 540530 Hearing on proposed change order new

certificate appeal540210 Distribution among users from ditch or 540540 County acquiring land in irrigation dis

reservoir when and how made trict transfer of water rights to other540220 Payment of watermaster and assistant lands authority of county court540230 Distribution of waste or seepage water 540550 Ratification of prior transfer of water

payment rights to irrigation district

540240 Lien for wages and expense property sub ABANDONMENT OF WATER RIGHTS

ject to lien monthly payment 540610 Use as measure of water right nonuser540250 Lien notice of intent to claim foreclos as abandonment nonapplication to

ure attorneys fee municipalities confirmation of rights of

540260 Payment by one user lien against other municipalities

users enforcement remedy not exclu 540621 Cancelation of abandoned water right uponsive request of owner

540270 Irrigation districts and improvement com540631 Notice by State Engineer of initiation of

proceedings to cancel abandoned waterpanies not affected right

HYDRAULIC WORKS AND STRUCTURES 540641 Cancelation if no protest procedure forDITCH RIGHT OF WAY cancelation if owner or occupant files

Protest540310 Ditches and canals head ates measuringg g 540650 Filing copy of order or decree with coun

devices flumes along lines of ditches ty clerk issuance of new water right540320 Noncompliance with requirements effect certificate for water rights not canceled

235

CH 540 CROSS REFERENCES

PROHIBITED ACTS INJUNCTIONS540710 Interference with headgate or use of

water denied by watermaster or otherauthority evidence of guilt

540720 Unauthorized use or waste of water evidence of guilt of user

540730 Obstruction interfering with use of worksor access thereto prohibited

540740 Injunctive relief against action of watermaster

540750 Injunction suits notice and hearing toauthorize restraining order time ofhearing

PENALTIES

540990 Penalties

CROSS REFERENCES

Administrative procedures and rules of state agencies Ch 183

Change in use or transfer of rights to ground water537635 537705

Compliance with state water resources policy required 536300 to 536400

Fees for power development uses 543710 543720Klamath River Basin Compact 542610 to 542630

540030

Administrative regulations provisions governingCh 183

540040

Headgates of water companies under 1891 Act541040

540631

Abandonment of claim to water presumed if powerdevelopment fees not paid 543730

Enforcement of laws concerning loss of water rightsby water resources board 536340

540710 540720 540990Interference with waterworks and appliances pen

alty for 164610Wilful diversion of water penalty for 537990

236

CHANGE IN USE OR TRANSFER OF RIGHTS 540060

WATER DISTRICTS WATERMASTERSDISTRIBUTION OF WATER

GENERALLY

540010 Water districts creation purposes The State Engineer shall divide thestate into water districts which shall be soconstituted as to secure the best protectionto the claimants for water and the most eco

nomical supervision on the part of the stateWater districts shall not be created until

necessary

540020 Watermasters appointmentremoval State Engineer vested with powersof watermaster The State Engineer may appoint one watermaster for each water district The watermaster shall hold office until

his successor is appointed and has qualifiedbut may be removed at any time by the StateEngineer who shall fill all vacancies whichoccur in the office The State Engineer orany duly authorized assistant shall have thepowers and authority of a watermaster inthe distribution of water in any water district

540030 State Engineer general dutiesregarding water distribution The State Engineer shall

1 Have general control over the Watermasters

2 Execute the laws relative to the distribution of water and perform other functions as may be assigned to him

3 Have authority to make reasonableregulations to secure the equal and fair distribution of water in accordance with the

rights of the various users Such regulationsshall not be inconsistent with the laws of

the state The regulations made pursuant tothis subsection shall apply to all water rightsthat have been established

a By court decreeb Under an order of the State Engi

neer in proceedings for the determination ofrelative rights to the use of water or

c Through permits to appropriatewater or certificates of water right issuedby the State Engineer Amended by 1953c395 3

among the ditches pumps and reservoirs taking water therefrom according to the rightsof each in whole or in part and shall shutand fasten or cause to be shut and fastenedthe controlling works of ditches pumps orpipelines

2 Shall regulate or cause to be regulated the controlling works of wells or reservoirs in time of scarcity of water as may benecessary by reason of the rights existingfrom the streams or wells of his district

3 May regulate the distribution ofwater among the various users of waterfrom any stream or ground water supplywhere the rights have been determined bydecree of court or established under an orderof the State Engineer in proceedings for thedetermination of the relative rights to theuse of water or established through permitsto appropriate water or certificates of waterright issued by the State Engineer in accordance with the priority of such use and suchauthority extends to the distribution of wateramong the various users under any partnership ditch or well or from any reservoirwhere rights have been so determined

4 Shall whenever in the pursuance ofhis duties he regulates a headgate to a ditchor the controlling works of wells or reservoirs attach to the headgate or controllingworks a written notice properly dated andsigned setting forth the facts that the headgate or controlling works have been properlyregulated and are wholly under his controlwhich notice shall be legal notice to all theparties interested in the division and distribution of the water of that ditch well or reservoir

5 Shall as near as may be divide regulate and control the use of the water of all

streams and wells within his district by suchclosing or partial closing of the controllingworks thereof as will prevent the waste ofwater or its use in excess of the volume towhich the owner of the right is lawfullyentitled Amended by 1953 c395 3 1957c341 10

540050 District attorneys to representState Engineer and watermasters The district attorney shall appear for or on behalfof the State Engineer or any watermasterin any case which may arise in the pursuanceof the official duties of any such officer within the jurisdiction of the district attorney

540040 Watermasters duties and powers regulation and control of supply ofwater notice prevention of waste Each

to twa rmas er

1 Shall divide the water of the natural 540060 Arrest by watermaster comstreams wells or other sources of supply of plaint against offender The watermaster orthe surface or ground water of his district his assistants within his district shall have

237

540071 WATER LAWS

power to arrest any person violating any ofthe provisions of the Water Rights Act asdefined in ORS 537010 or ORS 537505 to537795 and turn him over to the sheriff or

other competent police officer within thecounty Immediately upon delivering anyperson so arrested into the custody of thesheriff the watermaster making the arrestshall in writing and upon oath make complaint before the proper justice of the peaceagainst the person arrested Amended by1957 c341 11

540070 Repealed by 1957c546 81

540071 Compensation and traveling expenses of watermaster suspension of watermaster 1 Each watermaster shall be compensated for his services and shall be allowedhis actual and necessary traveling expensesincurred while away from his office on official business Such compensation and traveling expenses shall be paid as provided in thissection

2 a Any watermaster may be employed on a yearly basis and in such eventhe shall be compensated for his services inan amount not exceeding 6000 per year asdetermined by the State Engineer and approved and paid by the county court or boardof county commissioners of each county inwhich the water district of the watermaster

is located by an order made at a regularterm when sitting for the transaction ofcounty business

b If the State Engineer and the countycourt or board of county commissioners ofeach county in which the water district ofthe watermaster is located so provide byagreement a watermaster may be employedon a per diem or monthly basis for less than12 months per year

c Any watermaster employed underparagraph a or b of this subsection maybe suspended by the State Engineer whenever the services of such watermaster maybe dispensed with temporarily and a watermaster so suspended shall receive no compensation or traveling expenses during theperiod of the suspension

d Each watermaster employed underparagraph a or b of this subsection shallkeep a true and full account of the actualand necessary traveling expenses incurred byhim while away from his office on officialbusiness and shall present a true copy of suchaccount verified by his oath to the countycourt or board of county commissioners ofeach county in which the water district of

such watermaster is located Upon approvalof such account by the State Engineer eachsuch county court or board of county commissioners shall allow and pay such actualand necessary traveling expenses by an ordermade at a regular term when sitting for thetransaction of county business

e When a water district is located inmore than one county the orders of thecounty courts or boards of county commissioners under this subsection approving compensation or allowing traveling expenses ofa watermaster shall also fix the proportionthereof to be paid by each countyf The compensation and traveling ex

penses of a watermaster employed under thissubsection shall be paid by the county orcounties in the same manner as the compensation and traveling expenses of county officers

3 If no provision is made under subsection 2 of this section for the employment of a watermaster and the payment ofhis compensation and traveling expenses awatermaster may be employed and his compensation and expenses paid as provided inORS 540090 to 540130 by the water usersof a water district among whom distributionor division of water is made 1957c546 2

540080 Employment of assistant watermasters compensation and expenses termination of service of assistant watermaster1 The watermaster may employ suitableassistants to aid him in the discharge of hisduties The assistants shall take the sameoath as the watermaster shall obey his instructions and shall be compensated in anamount not exceeding 15 per day and actualexpenses for each day they are employedSuch compensation and expenses shall bepaid by the county court or board of countycommissioners upon certificates of the StateEngineer in the manner provided for the payment of the compensation and expenses of awatermaster under subsection 2 of ORS540071 If no provision for 5uch payment ismade such compensation and expenses shallbe paid by the water users concerned asprovided in ORS 540090 to 540130

2 The term of service of an assistant

watermaster may be terminated at any timeby the State Engineer or the watermasterAmended by 1957 c546 31

540090 Payment of watermaster bywater users demanding his services When arrangements are not made for employment orexpenses of a watermaster at the expense of

28

CHANGE IN USE OR TRANSFER OF RIGHTS 540130

the county as provided in subsection 2 ofORS 540071 the watermaster shall begin hiswork upon written demand being made uponhim by one or more water users In suchevent the water users demanding his servicesshall pay therefor at the rate of not morethan 15 per day and his actual and necessary traveling expenses in the performanceof the work demanded The State Engineermay under any condition call upon thewatermaster for work on matters pertainingto his district whenever the necessity therefor may in the judgment of the State Engineer arise Amended by 1957 c546 4

540100 Division of water among claimants payment 1 Whenever any waterusers are unable to agree relative to the distribution or division of water a majority ofthem may apply to the watermaster of thedistrict in which such distribution or divisionis in dispute by written notice setting forththe facts and asking the watermaster tomake a just division or distribution of wateramong the parties entitled to the use thereof

2 If no provision has been made forpayment of the watermaster or his expensesby the county in which the distribution or division is requested he shall be paid by thewater users among whom the distribution ordivision is made at the rate of not more than15 for each day actually engaged in suchwork and the expenses of the distributionThe expense of the watermaster or any assistant watermaster shall be paid by thewater users in proportion to the area of landfor which each water user is entitled to theuse of water so that each one shall pay thesame rate per acre Amended by 1957 c5465

and subscribed by the watermaster or assistant watermaster shall specify the particular items of wages and expenses for whichthe lien is claimed shall describe the landsof each water user upon which the lien isclaimed and shall state the name of the owner or reputed owner of the lands

2 The lien shall be filed within 60 daysfrom the completion of the distribution ordivision and suit to foreclose the lien shallbe brought in the circuit court of the countywherein the lands or any part thereof are situated within six months from the date offiling the notice of lien

3 In the event suit is necessary to foreclose the lien reasonable attorneysfees shallbe allowed the plaintiff in addition to thecosts and disbursements prescribed by lawand the lien shall be foreclosed in the manner provided by law for the foreclosure ofliens against real property

540120 Payment by one water user asgiving lien on lands of others notice foreclosure 1 One or more of the water usersconcerned in a distribution or division underORS 540100 may pay the wages and expenses as against any other user failing tocontribute his share or proportion of thewages and expenses and shall be entitled toalien upon the lands of the delinquent userentitled to use of water for his just share orproportion

2 The lien shall be made effective byfiling a similar notice to that prescribed inthe case of the watermaster or assistantwatermaster within 60 days from the dateof payment of the wages and expenses withthe county clerk and the same may be enforced and foreclosed and the same procedure including the allowance of reasonableattorneys fees shall be followed as in thecase of a lien claimed and foreclosed by thewatermaster or assistant watermaster as setforth in ORS 540110 But the lien shall notbe deemed an exclusive remedy

540110 Lien on land and crops noticeforeclosure attorneys fee 1 The watermaster or assistant watermaster performingthe services provided for in ORS 540100 shallhave alien upon the lands of the water usersentitled to the use of water and upon thecrops produced upon such lands during theirrigation season for which the determinationis made If any water user fails to pay hisproportionate part of the wages and expensesof the watermaster or assistant watermasterafter his work has been completed the lienmay be made effective by filing a notice inwriting of intention to claim a lien for suchwages and expenses with the county clerk ofthe county in which the lands of the wateruser are situated The notice shall be verified

540130 Advance payment If no provision has been made for payment of the watermaster or his expenses as provided in subsection 2 of ORS 540071 before proceeding to make any distribution or division thewatermaster may require of the water usersrequesting the distribution or division payment in advance of the estimated compensation and expenses involved in the work Thewater users shall present to the watermaster an estimate of the number of days the

239

540140 WATER LAWS

services of the watermaster will be requiredFor each day so estimated the water usersshall pay not exceeding 15 as compensationand a reasonable amount not exceeding eightcents per mile as traveling expenses to beapplied on account of services and expensesin making the distribution or division Thewatermaster shall keep a true and full account of all moneys paid to him in advanceunder this section Upon the expiration ofthe period for which his services are required the watermaster shall refund to thewater users any unexpended balance ofmoneys so paid to him in advance Amendedby 1957 c546 6

540140 Insufficiency of water for allusers preference of domestic over agricultural use and agricultural over manufacturing use When the waters of any naturalstream are not sufficient for the service ofall those desiring the use of the same thoseusing the water for domestic purposes shallsubject to such limitations as may be prescribed by law have the preference over thoseclaiming such water for any other purposeand those using the water for agriculturalpurposes shall have the preference over thoseusing the same for manufacturing purposes

540150 Rotation in use notice to watermaster To bring about a more economical useof the available water supply water usersowning lands to which are attached waterrights may rotate in the use of the supply towhich they may be collectively entitled Whenever two or more water users notify thewatermaster that they desire to use the waterby rotation and present a written agreementas to the manner of rotation the watermaster shall distribute the water in accordancewith the written agreement

540160 to 540200 Reserved for expansion

DISTRIBUTION OF WATER FROMIRRIGATION DITCIIES AND

RESERVOIRS

540210 Distribution among users fromditch or reservoir when and how made 1Whenever any water users from any ditch orreservoir either among themselves or withthe owner thereof are unable to agree relative to the distribution or division of waterthrough or from the ditch or reservoir eitherthe owner or any such water user may applyto the watermaster of the district in which

the ditch or reservoir is located by writtennotice setting forth such facts and askingthe watermaster to take charge of the ditchor reservoir for the purpose of making a justdivision or distribution of water from it tothe parties entitled to the use thereof

2 The watermaster shall then take exclusive charge of the ditch or reservoir forthe purpose of dividing or distributing thewater therefrom in accordance with the re

spective and relative rights of the varioususers of water from the ditch or reservoirand shall continue the work until the neces

sity therefor shall cease to exist3 The distribution and division of water

shall be made according to the relative andrespective rights of the various users fromthe ditch or reservoir as determined by theState Engineer by decree of the circuit courtor by written contract between all of the usersfiled with the watermaster

4 The circuit court having jurisdictionmay request the watermaster of the districtto take charge of any such ditch or reservoir and to enforce any decree respectingsuch ditch or reservoir made under the jurisdiction of the court

540220 Payment of watermaster andassistant 1 In the cases provided for inORS 540210 the watermaster may appointan assistant to take charge of the ditch orreservoir The assistant shall devote all or so

much of his time as may in the judgment ofthe watermaster be necessary He shall bepaid by the water users from the ditch orreservoir at the rate of not more than 15for each day actually engaged in such workand the expense of such distribution

2 In the case of partnership ditches ormutual irrigation corporations organized forthe benefit of the members or stockholdersthe expense of the watermaster or assistantincluding the wages of the assistant if one beappointed shall be paid by the water usersin proportion to the area of land for whicheach water user is entitled to the use of

water from the ditch or reservoir so thateach shall pay the same rate per acre

3 In the case of ditches and reservoirsconstructed and operated for sale or rentalof water the wages and expense shall bepaid by the owner of the ditch or reservoirunless otherwise provided in written contracts with water users therefrom Amendedby 1957 c546 7

140

CHANGE IN USE OR TRANSFER OF RIGHTS 540270

540230 Distribution of waste or seepage water payment Whenever a watermaster is called upon in accordance with the provisions of ORS 540210 to distribute the waters of any ditch containing or carrying wasteor seepage water the holder of the right tothe use of such waste or seepage water shallpay the total cost of the installation of measuring devices for the measurement of thewaste or seepage water and the total expenseof measuring and distributing it

540240 Lien for wages and expenseproperty subject to lien monthly paymentIn the case of a partnership ditch or reservoir or a ditch or reservoir owned in common or by a mutual irrigation company incorporated under the laws of this state thewages of the watermaster or assistant watermaster and expenses of the distribution provided for by ORS 540210 to 540240 and thenecessary and proper expense of installationand maintenance of measuring devices andheadgates to provide for the just distributionof water among the several users in accordance with their respective and relative rightsshall be a lien upon the ditch or reservoirupon each tract of land entitled to the useof water for irrigation from the ditch or reservoir and upon the crops produced upon suchlands during the irrigation season for whichthe distribution is made In the case of a ditch

or reservoir owned or operated by a personengaged in the business of selling or rentingwater therefrom the wages and expenseshall be alien upon the ditch or reservoir Thewages and expense shall be paid monthly bythe water users or by the mutual irrigationcompany or by such person

540250 Lien notice of intent to claimforeclosure attorneysfee 1 If not paid

from the completion of such distribution Suitto foreclose the lien shall be brought in thecircuit court of the county wherein the landsditch or reservoir or any part thereof aresituated within six months from the date offiling the notice

3 If suit is necessary to foreclose thelien then a reasonable attorneys fee shallbe allowed the plaintiff in addition to the costsand disbursements prescribed by law The lienshall be foreclosed in the manner provided bylaw for the foreclosure of liens against realproperty

540260 Payment by one user lien

against other users enforcement remedy notexclusive 1 One or more of the water usersfrom any partnership or mutual irrigationcompany ditch may pay the wages and expense and as against any other user failingto contribute his share or proportion of thewages and expense shall be entitled to a lienupon the lands of the delinquent user entitledto the use of water from the ditch and reser

voir and upon the share or interest of theowner in the ditch or reservoir for such justshare or proportion

2 The lien shall be made effective byfiling a similar notice to that prescribed inthe case of the watermaster or assistant

within 60 days from the date of payment ofthe wages and expense with the countyclerk It may be enforced and foreclosed andthe same procedure including the allowanceof reasonable attorneys fees shall be followed in such foreclosure as in the case of a

lien claimed and foreclosed by the watermaster or assistant as set forth in ORS 540250But the lien shall not be deemed an exclusive

then the hen may be made efftive by theremedy

ec

watermaster or assistant by filing a notice in 540270 Irrigation districts and improvewriting of intention to claim a lien for such ment companies not affected Nothing conwages and expense with the county clerk ofthe county in which the ditch or reservoir tained in ORS 540210 to 540260 shall be

and lands are situated The notice shall be

verified and subscribed by the watermasteror assistant shall specify the particular itemsof wages and expense for which the lien isclaimed shall describe the lands of eachwater user upon which the lien is claimedand shall set forth the name of the ditch or

applicable to the distribution of water fromthe irrigation systems or works of irrigationdistricts or district improvement companiesDistribution of water from such irrigationsystems or works shall be under the exclusivecontrol of the directors of the irrigation dis

reservoir and the name of the owner or re tricts and district improvement companiesputed owner of the lands and ditch or reservoir against which the lien is claimed 540280 to 540300 Reserved for expan

2 The lien shall be filed within 60 days sion241

544310 WATER LAWS

HYDRAULIC WORKS AND STRUCTURES til the requirements of the State Engineer asDITCH RIGHT OF WAY to such measuring devices are complied with

540310 Ditches and canals headgatesmeasuring devices flumes along lines ofditches 1 The owner of any ditch or canalshall maintain to the satisfaction of the State

Engineer a substantial headgate at the pointwhere the water is diverted It shall be ofsuch construction that it can be locked and

kept closed by the watermaster2 The owner shall construct and main

tain when required by the State Engineersuitable measuring devices at such pointsalong the ditch as may be necessary to assistthe watermaster in determining the amountof water that is to be diverted into the ditch

from the stream or taken from it by the various users

3 When necessary for the protection ofother water users the State Engineer mayrequire flumes to be installed along the lineof any ditch

540320 Noncompliance with requirements effect If any owner of irrigationworks refuses or neglects to construct andput in headgates flumes or measuring devices as required under ORS 540310 after10 days notice the watermaster may closethe ditch and it shall not be opened or anwater diverted from the source of supply under the penalties prescribed by law for thopening of headgates lawfully closed untilthe requirements of the State Engineer ato such headgates flumes or measuring devices have been complied with

540330 Reservoirs measuring deviceseffect of noncompliance 1 Any owner omanager of a reservoir located across or uponthe bed of a natural stream shall constructand maintain when required by the State Engineer a measuring device below and onabove the reservoir on each stream or sourceof supply discharging into the reservoir toassist the watermaster in determining thamount of water to which appropriators arentitled and thereafter diverting it for theiruse

2 If any owner or manager of a reservoir located across the bed of a natural stream

neglects or refuses to put in a measuring device after 10 days notice by the State Engineer the watermaster may open the sluicegate or outlet of the reservoir and it shall notbe closed under penalties of the law fochanging or interfering with headgates un

540340 Reservoir and diversion damsuitable outlet effect of noncompliance 1Whenever it may be necessary for the protection of other water users the State Engineer shall require every owner or managerof a reservoir or diversion dam located acrossor upon the bed of a natural stream to construct and maintain a suitable outlet in thereservoir or diversion dam which will allow

the free passage of the natural flow of thestream The State Engineer shall determinewhat constitutes a suitable outlet

2 If any owner or manager of a reservoir or diversion dam refuses or neglects toconstruct or put in such outlet in the reservoir or diversion dam after 10 days notice bythe State Engineer the State Engineer mayclose the ditch carrying water from the reservoir or diversion dam and it shall not be

opened or any water diverted from the reservoir or diversion dam under the penalties prescribed by law for the opening of headgateslawfully closed until the requirements of theState Engineer regarding such outlet havebeen complied with

540350 Dams dikes and other hydraulicy works examination and approval by en

gineer approval not to relieve owners ofe responsibility inspections modification of

works hearing 1 No person firm or prix vate or municipal corporation shall construct

any dam dike or other hydraulic structureor works the failure of which the State Engineer finds would result in damage to lifeor property unless the State Engineer has

r made an examination of the site and of the

plans and specifications and other featuresinvolved in the construction of such worksand has approved them in writing

e 2 His approval of the site plans andspecifications or other features involved inthe construction maintenance and operation

e of any hydraulic works whatsoever shall note relieve the owners of their legal responsibili

ties

3 He may make inspections of any hydraulic structure the site thereof and of theplans and specifications and any other features involved in the construction maintenance and operation of such works If as aresult of such inspections he deems any modifications necessary to insure the safety of

r the works with reference to possible damageto life or property he shall notify the legal

242

CHANGE IN USE OR TRANSFE OF RIGHTS 540410

owners by registered mail stating whereinthe lack of safety lies setting forth the modifications necessary to insure the safety ofthe works in so far as it affects possible damage to life or property and calling a hearingat such time and place as will give the ownersa reasonable time to prepare therefor

540360 Order to modify appeal Afterthe hearing the State Engineer may issue awritten order to the owners to make suchmodifications as he deems necessary to insurethe safety of the works with reference topossible damage to life or property and shallfix the time within which work shall be begun in good faith and the time for completionHowever the order shall be subject to appealto the circuit court of the county in which theworks or any part thereof are situated Thecourt may review the case de novo and without prejudice respecting any prior proceedings The owners upon receipt of such ordershall proceed to make the modifications soordered within the time limit prescribed orshall initiate their appeal therefrom as aboveprovided

540370 Enforcing compliance with order or decree 1 If the owners fail to makethe modifications within the time limits set

by the State Engineer or to institute theirappeal or to comply with the decree of theappellate court in case an appeal is taken theState Engineer shall issue an order in writing to the owners directing that the gates bekept open or an opening made in the dam ifnecessary or that the structure shall not beused for the storage restraint or conveyanceof water until the modifications have beenmade

2 No owner shall refuse to comply withthe orders of the State Engineer or the decreeof an appellate court

3 In case of noncompliance the StateEngineer shall direct the watermaster orother authorized assistant to carry out theorders or he may file a copy of his orderwith the Attorney General or with the districtattorney of the county within which the worksare located The Attorney General or districtattorney shall bring proceedings in the nameof the state in the circuit court of the countywithin which the works or any part thereofare situated to abate the offending worksThe court after a full hearing on the mattermay declare the works a nuisance and ordertheir removal or order any repairs or alterstions and may enforce its orders in the manner provided by law

540380 Reports of consultants payment The State Engineer may accept the reports of consulting engineers geologists orother specialists whom the owners of theworks in question may have employed Butif for any reason he deems the reports insufficient he may employ consulting engineers geologists or other specialists outsideof his office to make special examinations andinspections and to prepare reports thereon forhis guidance The cost of such special examinations inspections and reports shall be paidby the State Engineer from any funds at hisdisposal or it may be divided by mutualagreement between the state and the owners

540390 Inspection by engineer upon application by resident landowner or on ownmotion expenses deposit by applicant payment by owner of works lien Should anyperson residing on or owning land in theneighborhood of any dam dike or other hydraulic structure after completion or incourse of construction apply to the State Engineer in writing desiring an inspection of theworks the State Engineer may order an inspection or he may make such order on hisown motion Before doing so he may requirethe applicant for such inspection to make adeposit of a sum of money sufficient to paythe expenses of an inspection In case theapplication appears to him not to have beenjustified he may cause the whole or part ofthe expenses to be paid out of the deposit Incase the application appears to the State Engineer to have been justified he may requirethe owner of the works to pay the whole orany part of the expenses of the inspectionand it shall constitute a valid lien against theworks which may be enforced in the samemanner as provided for the enforcement ofmechanics liens

540400 Law not applicable to certainworks ORS 540350 to 540390 shall not ap

ply to1 Any dam less than 10 feet in height

or impounding less than3000000 gallons ofwater

2 Splash dams used for driving logs3 Farm dikes constructed by individ

uals on their own property4 Ditches carrying less than five cubic

feet of water per second

540410 Use of watercourse to deliver

reservoir water notice to watermaster adjustment of headgates expenses liabilityfor and collection of payment Whenever the

243

WI WATER LAWS

owner manager or lessee of a reservoir constructed under the provisions of the WaterRights Act as defined in ORS 537010desires to use the bed of a stream or otherwatercourse to carry stored or impoundedwater from the reservoir to the consumer

thereof he shall in writing notify the watermaster of the district in which the stored or

impounded water is to be used giving the datewhen it is proposed to discharge water fromthe reservoir its volume and the names ofall persons and ditches entitled to its use Thewatermaster shall then close or so adjust theheadgates of all ditches from the stream orwatercourse not entitled to the use of suchstored water as will enable those having theright to secure the volume to which they areentitled The watermaster shall keep a trueand just account of the time spent by him inthe discharge of his duties as defined in thissection and the county court or board ofcounty commissioners of the county whereinthe expense is incurred shall present a bill ofonehalf the expense so incurred to the reservoir owner manager or lessee If the ownermanager or lessee neglects for 30 days afterpresentation of the bill of costs to pay it thecosts shall be made a charge upon the reservoir and shall be collected as delinquent taxesuntil complete payment has been madeAmended by 1955 c39 1

540420 Maintenance and operation ofjointlyowned ditches performance by coowner recovery from one in default In allcases where ditches are owned by two or morepersons and one or more of such persons failsor neglects to do a proportionate share of thework necessary for the proper maintenanceand operation of the ditch or to constructsuitable headgates or measuring devices atthe points where water is diverted from themain ditch the owner desiring the performance of such work may after having given10 days written notice to the other owner whohas failed to perform his proportionate shareof the work perform such share and recovertherefor from the person in default the reasonable expense of the work

540430 Effect of nonpayment by coowner lien on interest foreclosure stoppageof delivery of water 1 Upon the failure ofany coowner to pay his proportionate shareof the expense as mentioned in ORS 540420within 30 days after receiving a statementof the same as performed by his coownerthe latter may secure payment of the claim

by filing an itemized and sworn statementthereof setting forth the date of performance and the nature of the labor performedwith the county clerk of the county whereinthe ditch is situated When so filed it shall

constitute a valid lien against the interest ofthe person in default which lien may be established and enforced in the same manner asprovided by law for the enforcement of mechanicsliens

2 In lieu of proceeding to enforce thelien the person performing the labor may filean itemized and sworn statement with thewatermaster of the district within which the

ditch is located setting forth the date of performance the nature of the labor performedthe total expense incurred by the person andthe proportion of the expense each ownershould pay together with a written requestthat the watermaster take charge of the distribution of the water from the ditch to the

parties entitled to the use thereof Thereuponthe watermaster may proceed to distributethe water in accordance with established

rights However if an owner or user has notpaid his proportion of expenses incurred forthe proper maintenance and operation of theditch the watermaster may serve such partywith written notice personally or by registered mail setting forth the proportion ofexpenses incurred for which he is obligatedto pay If the party so served refuses or neglects to pay his part of the expense within10 days after the serving or mailing of thenotice the watermaster may refuse to deliverwater to be used upon the lands of such personuntil after the expense has been paid

540440 Owner to clear weeds from ditch

right of way All persons owning or controlling any water ditches shall keep their rightof way along the ditches clean and free fromwild oats mustard thistles or any weeds orobnoxious grasses whatsoever

540450 to 540500 Reserved for expansion

CHANGES IN USE OF WATERTRANSFER OF WATER RIGHTS

540510 Appurtenancy of water to premises restrictions on change of use or place ofuse or point of diversion All water used inthis state for any purpose shall remain appurtenant to the premises upon which it is usedand no change in use or place of use of anywater for any purpose may be made without compliance with the provisions of ORS

44

CHANGE IN USE OR TRANSFER OF RIGHTS 540

540520 and 540530 However the owner ofany water right may upon compliance withthe provisions of ORS 540520 and 540530change the use and place of use the point ofdiversion or the use theretofore made of thewater in all cases without losing priority ofthe right theretofore established

540520 Application for change of useplace of use or point of diversion public notice filing of objections 1 Whenever theowner of a water right for irrigation domestic use manufacturing purposes or other usefor any reason desires to change the place ofuse the point of diversion or the use theretofore made of the water an application tomake such change as the case may be shallbe filed with the State Engineer The application shall state the name of the owner theuse theretofore made of the water a description of the premises upon which the water isused a description of the premises upon whichit is proposed to use the water the use whichis proposed to be made of the water and thereasons for making the proposed change

2 Upon the filing of the application theState Engineer shall give notice by publication in a newspaper printed and having general circulation in the county in which thewater rights are located for a period of atleast three weeks and not less than one publication each week The published notice shallset forth the time and place when a hearingshall be had upon the application providedthat the date fixed for such hearing shall benot less than 30 days after the last publication of the notice The hearing shall be hadin the county where the rights are locatedThe cost of the publication shall be paid bythe applicant in advance to the State Engineer In applications for only a change inplace of use or for a change in the point ofdiversion of less than one fourth mile andwhere there are no intervening diversions between the old diversion of the applicant andhis proposed new diversion no notice need bepublished

3 Any person having objections to theproposed change as set forth in the publishednotice shall file his objections with the StateEngineer at least 10 days previous to the dateset for the hearing If no objections are filedthe change may be approved by the StateEngineer without a hearing

the State Engineer or his authorized assistant shall hear and determine the same The

proceedings shall be summary and informalbut witnesses may be called and testimonytaken If after hearing or examination theState Engineer finds that the proposedchange can be effected without injury to existing rights he shall make an order approving the transfer and fixing a time limit within which the application of water may be madeto the new use During the time allowed by theState Engineer for such application of waterthe right which has been transferred shallnot be considered to be abandoned by nonuse

2 If a certificate has been theretoforeissued covering the water right the State Engineer shall likewise make an order cancelingit and on the filing of proper proof of complete application of the water to the new usehe shall issue in lieu thereof a new certificate

preserving the priority of rights theretoforeestablished in connection therewith and cov

ering the change in use or place of use3 In case objections are filed an appeal

may be taken from the decision of the StateEngineer in the manner provided in ORS537200

540540 County acquiring land in irrigation district transfer of water rights to otherlands authority of county court Wheneverthe title to lands within an irrigation districthas been or is acquired by the county withinwhich the land is located by foreclosure oftax liens or otherwise the county court orboard of county commissioners upon requestof the irrigation district may make application under the provisions of ORS 540510 to540530 to have the water rights appurtenantto such lands transferred to other lands with

in the irrigation district which are owned bythe county or privately owned

540550 Ratification of prior transferof water rights to irrigation district All attempted transfers or sales prior to March6 1931 to an irrigation district of waterrights which theretofore had been appurtenant to lands located in the district andwhich lands at the time of the attemptedtransfer or sale were owned by the countyshall be considered to be legal and bindingand the water rights which were appurtenant to such lands shall be considered toh b the ro ert of the district tovea ecome p p y

540530 Hearing on proposed change which attempted to be conveyed but aporder new certificate appeal 1 At the time purtenant only to lands within the bounfixed for the hearing if objections are filed daries of the district as they existed on

245

540610 WATER LAWS

March 6 1931 if the irrigation district applied to the State Engineer within five yearsafter March 6 1931 under the provisionsof section 47712 Oregon Code 1930 asamended by chapter 102 Oregon Laws 1931to have the water rights made appurtenantto other lands within the irrigation districtIn that event the county shall sell the landswithout any water rights being appurtenantthereto If the irrigation district failedwithin five years after March 6 1931 tomake such application then title to the water rights shall be considered to have beenforfeited

540560 to 540600 Reserved for expansion

ABANDONMENT OF WATER RIGHTS

540610 Use as measure of water rightnonuser as abandonment nonapplication tomunicipalities confirmation of rights ofmunicipalities 1 Beneficial use shall bethe basis the measure and the limit of allrights to the use of water in this stateWhenever the owner of a perfected and developed water right ceases or fails to usethe water appropriated for a period of fivesuccessive years the right to use shall ceaseand the failure to use shall be conclusivelypresumed to be an abandonment of waterright Thereafter the water which was thesubject of use under such water right shallrevert to the public and become again thesubject of appropriation in the manner provided by law subject to existing priorities

2 However this section shall not apply to or affect the use of water or rightsof use acquired by cities and towns in thisstate by appropriation or by purchase forall reasonable and usual municipal purposesnor shall it be so construed as to impair anyof the rights of such cities and towns to theuse of water whether acquired by appropriation or purchase or heretofore recognized by Act of the legislature or whichmay hereafter be acquired

3 The right of all cities and towns inthis state to acquire rights to the use of thewater of natural streams and lakes not otherwise appropriated and subject to existingrights for all reasonable and usual municipal purposes and for such future reasonableand usual municipal purposes as may reasonably be anticipated by reason of growthof population or to secure sufficient watersupply in cases of emergency is expresslyconfirmed

540620 Repealed by 1955 c671 1540621 Cancelation of abandoned water

right upon request of owner Whenever theowner of a perfected and developed waterright certifies under oath to the State Engineer that the water right has been abandoned by him and that he desires cancelationthereof the State Engineer shall enter anorder canceling the water right Effectiveupon the date of the entering of such orderthe water which was the subject of use underthe water right shall revert to the public andbecome again the subject of appropriationin the manner provided by law subject to existing priorities Upon the entering of suchorder the State Engineer shall cause a certified copy thereof to be transmitted to thecounty clerk of the county in which the water right was located and such county clerkshall stamp or write across the face of therecorded water right certificate which evidenced the water right the words Canceledby order of State Engineer dated1955c670 1

540630 Repealed by 1955 c671 1540631 Notice by State Engineer of in

itiation of proceedings to cancel abandonedwater right Whenever it appears to thesatisfaction of the State Engineer upon hisown determination or upon evidence submitted to him by any person that a perfectedand developed water right has been abandoned as provided in ORS 540610 the StateEngineer may initiate proceedings for thecancelation of such water right by causingwritten notice of such initiation of proceedings to be given by registered mail returnreceipt requested to the legal owner of thelands to which the water right is appurtenant and to the occupant of such lands Thenotice to the legal owner shall be addressedto him at his last address of record in the

office of the county assessor of the countyin which the lands are located The notice

shall contain a complete description of thewater right and of the lands to which thewater right is appurtenant The notice shallstate that the legal owner or the occupanthas a period of 60 days from the date of themailing of the notice within which to protestthe proposed cancelation of the water right1955 c670 21

540640 Repealed by 1955 c671 1540641 Cancelation if no protest pro

cedure for cancelation if owner or occupantfiles protest 1 If the legal owner or the

246

CHANGE IN USE OR TRANSFER OF RIGHTS 540740

occupant receiving notice as provided in ORS540631 fails to protest the proposed cancelation of the water right within the 60dayperiod prescribed in the notice the StateEngineer may enter an order canceling thewater right

2 If the legal owner or the occupantreceiving notice as provided in ORS 540631files a protest against the proposed cancelation of the water right with the State Engineer within the 60day period prescribedin the notice the State Engineer shall fixa time and place for a hearing on the protest The State Engineer shall cause written notice of the hearing to be given at least10 days prior to the hearing to the personprotesting the cancelation of the water rightand to any other person who in the opinionof the State Engineer is an interested partyto the proceeding The hearing shall be heldby the State Engineer or his authorized assistant and shall be conducted in a mannersimilar to that provided in ORS 537430 After the hearing the State Engineer shall enter an order canceling the water right canceling in part or modifying the water rightor declaring that the water right shall notbe canceled or modified Such order is sub

ject to appeal as provided in ORS 536060 byany party to the proceeding within a periodof 30 days from the date of mailing a copyof the order to such party 1955 c670 3

540650 Filing copy of order or decreewith county clerk issuance of new waterright certificate for water rights not canceled 1 Upon the entering of an order bythe State Engineer under subsection 1 ofORS 540641 canceling a water right or uponthe expiration of the 30day period for appeal from an order of the State Engineer under subsection 2 of ORS 540641 cancelingcanceling in part or modifying a water rightor if such order is appealed within the 30day period upon a final decree on the appealcanceling canceling in part or modifying thewater right the State Engineer shall causea certified copy of such order or final decreeto be transmitted to the county clerk of thecounty in which the water right was locatedUpon receipt of such certified copy the county clerk shall stamp or write across the faceof the recorded water right certificate whichevidenced the water right canceled canceledin part or modified the words Canceled byorder of State Engineer datedor Canceled by decree of circuit court for

County datedas the case may be

2 If the order of the State Engineer orthe final decree on the appeal therefromcancels in part or modifies the water rightthat portion of the water right not canceledor continued as modified shall be reaffirmed

by a new water right certificate issued bythe State Engineer Such certificate shallbe of the same character as that describedin ORS 539140 The certificate shall be recorded and transmitted to the owner of the

water right as provided in ORS 5391401955 c670 4

540660 to 540700 Reserved for expansion

PROHIBITED ACTS INJUNCTIONS

540710 Interference with headgate oruse of water denied by watermaster or otherauthority evidence of guilt No person shallwilfully open close change or interfere withany lawfully established headgate or waterbox without authority or wilfully use wateror conduct water into or through his ditchwhich has been lawfully denied him by thewatermaster or other competent authorityThe possession or use of water when thesame shall have been lawfully denied by thewatermaster or other competent authorityshall be prima facie evidence of the guilt ofthe person using it

540720 Unauthorized use or waste of

water evidence of guilt of user No personshall use without authorization water towhich another person is entitled or wilfullywaste water to the detriment of anotherThe possession or use of such water withoutlegal right shall be prima facie evidence ofthe guilt of the person using it

540730 Obstruction interfering with

use of works or access thereto prohibitedWhenever any appropriator of water has thelawful right of way for the storage diversion or carriage of water no person shallplace or maintain any obstruction that shallinterfere with the use of the works or prevent convenient access thereto

540740 Injunctive relief against actionof watermaster Any person who may be injured by the action of any watermaster mayappeal to the circuit court for an injunctionThe injunction shall only be issued in caseit can be shown at the hearing that thewatermaster has failed to carry into effectthe order of the State Engineer or decrees

247

540750

of the court determining the existing rightsto the use of water

540750 Injunction suits notice and

hearing to authorize restraining order timeof hearing In suits for injunction affectingthe use of water from streams upon whichthe rights to water have been determinedno restraining order shall be granted beforehearing had after at least three days noticethereof served upon all parties defendantAll suits for injunction involving the use ofwater shall be heard either in term time orduring vacation not later than 15 days afterissues joined unless for good cause shownfurther time be allowed

540760 to 540980 Reserved for expansion

PENALTIES

540990 Penalties 1 Violation of any

WATER LAWS

provision of ORS 540440 is punishable uponconviction by a fine of not less than 25nor more than 150 together with the costsand disbursements of the action and in default of the payment of the fine and costsby confinement in the county jail one dayfor each 2 thereof Justice courts shall haveconcurrent jurisdiction with the circuit

courts in the trial of all proceedings underthis subsection

2 Violation of any provision of ORS540710 540720 or 540730 or of subsection2 of ORS 540370 is punishable upon conviction by a fine of not less than 10 normore than 250 or by imprisonment in thecounty jail for not more than six monthsor both Justice courts and district courtsshall have concurrent jurisdiction with thecircuit courts in the trial of all violationsunder this subsection

CERTIFICATE OF LEGISLATIVE COUNSEL

Pursuant to ORS 173170 I Sam R Haley Legislative Counsel do herebcompared each section printed in this chapter with the original section inthat the sections in this chapter are correct copies of the enrolled sectionsof the changes in form permitted by ORS 173160 and other changes specificallyDone at Salem Oregonon December 2 1957

certify that I havethe enrolled bill and

with the exceptionauthorized by law

Sam R HaleyLegislative Counsel

248