OAG 40-13.

• Case Date: July 16, 1940
• Court: Oregon

Oregon Attorney General Opinions 1940. OAG 40-13. 17OPINION NO. 40-13[20 Or. Op. Atty. Gen. 17]Unless the State of Oregon can show that there is water flowing in Mill creek from natural sources in addition to that coming from the Santiam river, and that it has appropriated it prior to 1909, it does not now have the right to use such additional water. The state penitentiary does not have the right to continue the use of water from Mill creek in addition to the amount fixed by the court in the case of Salem Mills Co. v. Lord, 42 Or. 82, and the contract of February 19, 1903, unless such right be established as above indicated.July 16, 1940.Oregon State Board of Control.Gentlemen: In your letter of July 9, 1940, you refer to the fact that there is now under way by the state engineer an adjudication of the rights to the use of the water of the North Santiam river and Mill creek, in which proceeding a claim will be filed covering the rights of the State of Oregon to water for power and irrigation purposes. You recite the following historical facts:

"The Willamette Woolen Mills Manufacturing Company was incorporated by an act of the Legislative Assembly of the Territory of Oregon on December 17, 1856 (Laws 1856-57, P. 48) and the company was given the power to bring water from the Santiam river to Salem and points nearby through the channel or valley of Mill creek, with the right to use or sell the water so brought down from the Santiam river.

"On March 7, 1865, the Willamette Woolen Manufacturing Company deeded to the State of Oregon (recorded in Book 7, Page 549, Marion County Deed Records) the right of the said company to the water power on Mill creek where said creek passed through the land of M. L. Savage, Marion county, the right being restricted to the purpose of running machinery, etc., the right to use water for irrigation being limited to the amount of water that could be pumped through a two-inch pipe.

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"Thereafter, a dispute arose as to the right of the State of Oregon to use water for irrigation, and in the case of Salem Mills Company vs. Lord (42 Or. 82) it was held that the State possessed no right to divert water from Mill creek for irrigation in excess of the amount granted by the Willamette Woolen Manufacturing Company, although the decision appears to have been based somewhat on the lack of evidence as to the extent of use of said water.

"Thereafter, about February 19, 1903, the sum of $20,000 was paid by the State of Oregon to the successors of the Willamette Woolen Manufacturing Company for the right to use 1,200,000 gallons per day from Mill

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