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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 165 The miner's inch unit for measuring water in the mining camps is still used in some Western States, although its quantitative value varies from one area to another.27 The spreading influence of these mining customs is attested to by the considerable number of western jurisdictions in which early statutes authorizing appropriation of water contained the requirements of posting notice of appropriation, filing it for record, and diverting the water and putting it to beneficial use which were featured in the California statute of 1872.28 The present long, detailed "water codes," with their centralized administrative procedures, developed inevitably from these early brief declarations of a few basic principles. There is no doubt that the major contribution to the arid region doctrine of appropriation as it is now recognized and applied throughout the West was made by these gold miners. But as to whether the mining water rights doctrine was actually made up out of whole cloth in the Gold Rush days, substantial doubt has been expressed. A writer who studied the scene on the ground a few decades after its height,29 and another whose research was published in 1935,30 concluded that the rules and regulations then established were strikingly characteristic of much earlier mining enterprises in the Old World. The earlier writer compared the principle of "mining freedom" of the Germanic and Cornwall miners with that of the modern mining camps in California and other western jurisdictions. A half-century later, Professor Colby's well-documented article discussed the right of free mining and free use of flowing water for mining purposes as a part of the customs of Germanic miners in the Middle Ages, and the similarity of conditions under which the California and Germanic miners developed their rules, usages, and customs related to mining practices and uses of water for mining purposes. This principle of "free mining," with free use of water therefor, spread from the Germanic lands to various European countries and their colonies. In fact, Professor Colby's main thesis, with numerous examples, is the widespread existence of the doctrine of prior appropriation of water in the important mining regions of the world. Certain it is that the "Forty-niners" came to California from many countries. They may well have brought with them some knowledge of the old Germanic customs and applied this knowledge in their new environment. "With respect to mining water rights in general, see Hutchins, Wells A., "Water Laws Relating to Mining," Mining Engineering, February 1960, pp. 153-158. 28 Ariz. Laws 1893, No. 86, p. 135; Terr. Dak. Laws 1881, ch. 142; Idaho Laws 1881, p. 267; Kans. Laws 1886, ch. 115; Mont. Laws 1885, p. 130; Nebr. Laws 1889, ch. 68; Oreg. Laws 1891, p. 52; Oreg. Laws 1899, pp. 172-180; Oreg. Laws 1905, ch. 228; Utah Laws 1897, ch. 52; Wash. Gen. Stat. 1891, ch. 142. The influence is also apparent in N. Mex. Laws 1891, ch. 71; Tex. Laws 1889, ch. 88. 39Shinn, C. H., "Mining Camps, A Study in American Frontier Government," pp. 11-35 (1948, originally published in 1885). 30Colby, William E., "The Freedom of the Miner and Its Influence on Water Law," published in "Legal Essays, in Tribute to Orrin Kipp McMurray," pp. 67-84 (1935). |