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Show 186 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Early Development of the Riparian Doctrine in Specified Jurisdictions Transplantation of the common law riparian doctrine in the undeveloped West was favored by environment in some of the States, notably those lying on the 100th meridian and on the Pacific Coast in large parts of which humid conditions prevailed. In several of the more arid ones, on the contrary, the environment was so hostile that the court decision reports reflect no encouragement; in others, deviations or uncertainty appeared at times, to be cleared up later; and in one, the riparian doctrine was definitely recognized for some 13 years and then, after considerable criticism and turmoil, was abrogated. These matters are noted later under "Interrelationships of the Dual Water Rights Systems." Diverse ways in which the riparian doctrine was implanted and developed in the West may be illustrated by early experiences in California, Texas, the Dakota Territory, and Oklahoma. More recent developments in these and other areas in the Western States are discussed later in this chapter. California California's experience begins, of course, with the momentous Gold Rush, when demands for water for use in extracting gold from the ground led to adoption of two different systems of rights of use. The interplay of forces in the ensuing century of conflict between these systems is left for later discussion. Here we are concerned only with riparian rights. Easterners who came to California after the discovery of gold included many lawyers, who worked as miners pending the time when their professional services would be needed.120 They were versed in the common law and in the eastern court decisions in which the riparian doctrine had been held to be included therein. They were on the ground when controversies over mining claims and uses of water reached the regularly established courts, the disputants being trespassers on the public domain, the owner of the land (the Government) not being in court, the mining industry rapidly becoming or having become predominant in the economy of the new State, and questions being posed for which no direct precedent could be found. Under these circumstances, we find the California Supreme Court resorting for solution of these questions to analogies of the common law. (See "Establishment of the Appropriation Doctrine in the West-Development of the Appropriation Doctrine," above.) Thus, there was established in the mining litigation the rule that as between persons without title to land when the real owner is absent, priority of possession of the land gives the better right, diversion of water being regarded as equivalent to possession. Having gone that far, it is not surprising to find the 120Shinn, C. H., "Mining Camps, A Study in American Frontier Government," pp. 114-115 (1948, originally published in 1885). |