OCR Text |
Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 161 In 1898, the Territorial Supreme Court of New Mexico said that:9 The law of prior appropriation existed under the Mexican republic at the time of the acquisition of New Mexico, and one of the first acts of this government was to declare that "the laws heretofore in force concerning water courses * * * shall continue in force." Code proclaimed by Brigadier General Kearney, September 22, 1846. * * * The doctrine of prior appropri- ation has been the settled law of this territory by legislation, custom and judicial decision. Indeed, it is no figure of speech to say that agriculture and mining life of the whole country depends upon the use of the waters for irrigation, and, if rights can be acquired in waters not navigable, none can have greater antiquity and equity in their favor than those which have been acquired in the Rio Grande valley in New Mexico. A half-century later, the State supreme court observed that the constitutional provision, that the doctrine of prior appropriation applies to unappropriated waters of all natural streams,10 is only declaratory of prior existing law and always has been the rule and practice under Spanish and Mexican dominion; that this doctrine, based on the theory that all waters subject to appropriation are public, obtained under Mexican sovereignty and continued after the American acquisition.11 In 1901, the Arizona Supreme Court stressed the common ancestry of water laws of Arizona and New Mexico, and asserted that Arizona legislation on the right to appropriate water for beneficial use differed fundamentally from that of other States and Territories with the single exception of New Mexico.12 Continuing, the court said that: Whatever, therefore, may be the law as declared by the supreme court or court of appeals of Colorado, or the courts of last resort of other states and territories having a dissimilar history, or whose water laws have grown out of the local customs of miners, as in California and Nevada, these are not controlling, and are not even authoritative in the decision of questions which arise, as in this instance, wholly and entirely under our own peculiar statutes. * * * Thus have the Arizona and New Mexico courts expressed their convictions that the doctrine of appropriation existed in these jurisdications prior to American sovereignty-that the now existing appropriation philosophy was derived from principles and practices of the Spanish-Mexican occupations of 9United States v. Rio Grande Dam & In. Co., 9 N. Mex. 292, 306-307, 51 Pac. 674 (1898), reversed, but not on the point discussed here, 174 U. S. 690 (1899). 10 N. Mex. Const., art. XVI, § 2. "State ex rel. State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 217, 182 Pac. (2d) 421 (1945). See also Hagerman In. Co. v.McMurry, 16 N. Mex. 172, 181- 182,113 Pac. 823(1911). 12Slosser v. Salt River Valley Canal Co., 7 Ariz. 376, 385-386, 65 Pac. 332 (1901). 450-486 O - 72 - 13 |