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Show 166 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Development of the Appropriation Doctrine State and Local Laws and Customs Possessory rights on the public domain.-The appropriation doctrine developed chiefly on the public domain. For years the owner of these lands-the Federal Government-made no move either to assert or to grant away its water rights. The miners were trespassers, and so their claims to the use of water were not good as against the Government. However, in the absence of specific State or Federal legislation authorizing the appropriation of water, the customs established in the mining camps of recognizing rights to the use of water by appropriation-"first in time, first in right"-eventually became valid local law. This came about because of the policy of the courts to recognize miners' claims as possessory rights that were good among themselves and as against any other claimant but the Government. An enlightening account of the events leading up to the establishment of the appropriative doctrine in California is contained in an opinion of the United States Supreme Court written in 1879 by Justice Field, who had been Chief Justice of the California Supreme Court during a part of this dynamic period.31 Justice Field said that the discovery of gold was followed by an immense immigration into the State; that the gold-bearing lands, which belonged to the United States, were unsurveyed and not open to settlement; that the immigrants in vast numbers entered the Sierra Nevada with a love of order, system, and fair dealing. He continued: In every district which they occupied they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery, followed by appropria- tion, as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining, upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. But the mines could not be worked without water. Without water the gold 31Jennison v. Kirk, 98 U. S. 453, 457-458 (1879). |