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Show 170 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Two cases decided by the Montana Supreme Court in 1872, recognizing the appropriation doctrine, were affirmed by the United States Supreme Court in landmark decisions that fully supported the principles that had been developed in California.50 In Atchison v. Peterson, which involved the respective water rights of miners on the public domain, the United States Supreme Court stated that the doctrines of the common law declaratory of the rights of riparian owners had been found inapplicable or applicable only in a very limited extent to the necessities of miners and inadequate for their protection, and that as the Government was the sole proprietor of the public lands there was no occasion to apply such doctrine in the mining regions.51 Hence, the doctrine of appropriation had grown up, at first with the silent acquiescence of the Government, and then with congressional recognition; and in the meantime, it had been recognized by legislation and enforced by the courts in the Pacific States and Territories. Under this doctrine, priority gives the better right. In the other decision, Basey v. Gallagher, water on the public lands had been appropriated for irrigation purposes, neither party having any title from the United States. Referring to Atchison v. Peterson, then recently decided, the Supreme Court stated that the views and rulings therein contained were equally applicable to the use of water on the public lands for purposes of irrigation. It was further stated that no distinction was made in the Western States and Territories by the customs of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, provided the use is a beneficial one. General Recognition of the Appropriation Doctrine During the first 25-year period following the Gold Rush52-approximately 1850 to 1875-the appropriation doctrine was adopted by State or Territorial statute, or was recognized by high court decision, or both, in Arizona, California, Colorado, Montana, Nevada, New Mexico, and Wyoming.53 It was ^Gallagher v. Basey, 1 Mont. 457, 460-462 (1872), affirmed, 87 U. S 670, 681-682, 685-686 (1875); Atchison v. Peterson, 1 Mont. 561, 569 (1872), affirmed, 87 U. S. 507,510-516(1874). 51 Compare the discussion of establishment of the riparian doctrine in California, below (see "Establishment of the Riparian Doctrine in the West"), and the treatment by the California Supreme Court of water rights on the public domain analogous to riparian rights. S2See Hutchins, Wells A., "History of the Conflict between Riparian and Appropriative Rights in the Western States," Proceedings, Water Law Conferences, Univ. of Texas, p. 106 (1952, 1954). "Arizona: Terr. Ariz., Howell Code, Ch. LV (1864); Campbell v. Shivers, 1 Ariz. 161, 174, 25 Pac. 540 (1874). California: Cal. Civ. Code, § § 1410-1422 (1872); Eddy v. Simpson, 3 Cal. 249, 252 (1853). Colorado: Colo. Laws 1861, p. 67; Yunker v. Nichols, 1 Colo. 551, 555, 570 (1872). Montana: Bannack Stat., p. 367 (1865); Thorp v. Woolman, 1 Mont. 168, 172 (1870). Nevada: Lobdell v. Simpson, 2 Nev. 274, 278-279, 90 Am. Dec. 537 (1866). New Mexico: N. Mex. Laws 1851; see State exrel. |