| OCR Text |
Show 160 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES As of the middle of the 19th century, the seeds of the appropriation doctrine are discernible in the status of three general movements of great historical and economic importance, which for the most part were probably unrelated-(1) Spanish settlements in parts of the Southwest, (2) the Mormon colonization of Utah, and (3) the California Gold Rush. Irrigation, although on the whole in its infancy, was being practiced in parts of the Southwest, chiefly under the Spanish-American community acequias3 and to a moderate extent by individuals in other scattered western areas. The Mormon irrigation agriculture development in Utah was getting under way. In California, the Gold Rush had started and mining ditches were being dug. The early Utah and California water law situations have been the subject of much legal and historical literature, which facilitates appraisals of prevailing doctrine. In the southwestern areas, however, the situation with respect to appropriation of water is less clear and opinions concerning it differ. Spanish Settlements in Parts of the Southwest Irrigation in Arizona and New Mexico in aid of crop production is of prehistoric origin.4 According to the Arizona Supreme Court, recognition of the right to appropriate and use water for irrigation antedates history and even tradition.5 However, the supreme court has also stated that in the Mexican State of Sonora, of which Arizona formed a part before the cession from Mexico, rights of prior appropriators arose under Mexican law only as a result of grants from the government, but that appropriations were permitted to some extent by local custom.6 In a later case, the court stated that the declarations by the first Territorial legislature in the Howell Code7 established, with respect to watercourses, "the law of prior appropriation as it had existed for centuries in Mexico as best suited to our conditions."8 3Hutchins, Wells A., "The Community Acequia: Its Origin and Development," 31 Southwestern Historical Quarterly 261 (1928). See also Hutchins, Wells A./'Commun- ity Acequias or Ditches in New Mexico," State Eng., N. Mex., 8th Bien. Rept. 1926-1928, 227-237 (1928); Biggs v. Utah Irrigating Ditch Co., 7 Ariz. 331, 348-349, 64 Pac. 494 (1901); Snow v. Abalos, 18 N. Mex. 681, 691, 692-693, 140 Pac. 1044 (1914). 4Hutchins, "The Community Acequia: Its Origin and Development," supra note 3, pp. 261-262. 5Clough v. Wing, 2 Ariz. 371, 380, 17 Pac. 453 (1888). Early irrigation practices and water rights in what is now Arizona, and elsewhere, are also referred to in Biggs v. Utah Irrigating Ditch Co., 7 Ariz. 331, 348-349, 64 Pac. 494 (1901); Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 385-386, 65 Pac. 332 (1901); Boquillas Land & Cattle Co. v. St. David Cooperative Commerical & Development Assn., 11 Ariz. 128,135-139, 89 Pac. 504 (1907); Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 73-75, 4 Pac. (2d) 369 (1931). 6Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 74-75, 4 Pac. (2d) 369 (1931). See also Boquillas Land & Cattle Co. v. St. David Cooperative Commercial & Development Assn., 11 Ariz. 128, 129, 89 Pac. 504 (1907). 7Terr. Ariz. Howell Code, Bill of Rights, art. 22; ch. LV (October 4, 1864). 8 Tattersfield v. Putnam, 45 Ariz. 156,165, 41 Pac. (2d) 228 (1935). |
