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Show 172 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES and on which lands these customs were practiced in the early development of the appropriation doctrine. The significance of this fact in its impact upon the establishment of the doctrine in the West calls for strong emphasis. Period of silent acquiescence.-After the discovery of gold, diversions of water on the public domain for mining and other purposes were made for years before Congress took direct notice. Possessory titles to land and water representing in the aggregate great wealth were acquired and conveyed from one holder to another, with the sanction of the courts, on the assumption that the silence of Congress indicated tacit consent.60 Shortly after the close of the Civil War in 1865, proposals were made in Congress that the Government withdraw the mines on the public domain from the miners, and operate and sell them in order to obtain revenue to help pay the war debt. Western Senators and Representatives thereupon made a forceful and successful campaign to halt this movement, the culmination of which was the enactment on July 26, 1866, of an act expressly confirming the rights of miners and appropriators that had been recognized only tacitly theretofore.61 Act of 1866.- The Act of 1866 was primarily a mining law, which declared that the mineral lands of the public domain, both surveyed and unsurveyed, were free and open to exploration and occupation by citizens of the United States and those who had declared their intention to become citizens.62 However, section 9 contained these provisions: Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes had vested and accrued and were recognized and acknowledged by local customs, laws, and court decisions, their possessors should be protected in the same. Rights of way for the construction of ditches and canals for such purposes were acknowledged and confirmed. Any party who in the course of construction of a conduit damaged the possession of any settler on the public domain should be held liable to the injured party. The Act of 1866 thus gave formal sanction of the Government to appropriations of water on public lands of the United States, whether made before or after passage of the act, and rights of way in connection therewith, provided that the appropriations conformed to principles established by customs of local communities, State or Territorial laws, and decisions of courts. The act contained no procedure by which such rights could be acquired from the United States while the lands remained part of the public domain. What it did was to take cognizance of the customs and usages that had grown up on the public lands under State and Territorial sanction and to make compliance therewith essential to enjoyment of the Federal grant. According to the United States Supreme Court, this Congressional act was more than the establishment of a rule for the future.63 It also constituted 60See Forbes v. Gracey, 94 U. S. 762, 766-767 (1877). 61 Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 93 (1911). 6214Stat. 253(1866). 63Broder v. Water Co., 101 U. S. 274, 276 (1879). |