| OCR Text |
Show 232 APPROPRIATION OF WATER are still in existence. The Washington act was repealed in the course of enactment of the water appropriation statute of 1917.32 The Colorado Supreme Court held that the foregoing statute was not applicable to waters that reached a natural stream by natural flow, by percolation, or by being artificially turned into the same.33 In an Oregon decision, it was stated that the statutory preference in favor of the landowner did not apply under the circumstances of the case.34 An early Idaho law containing the same authorization-but without the provision favoring the landowner-is still a part of the water appropriation statute.35 Previous Court Declarations Stream Water Appropriative Rights For a long period appropriative rights in the West related chiefly to diversions of water from surface streams. In the large majority of States and Territories, the legislatures spoke first, and the courts sooner or later extended their recognition to the appropriation doctrine and construed the already existing statutes. Thus, in most cases the designation of appropriable waters was originally a legislative function. It pertained specifically in certain instances to surface stream waters only; in others, to both streams and one or more other surface sources. In the other jurisdictions, judicial recognition of this doctrine necessarily related under the facts of each case to rights to the use of streamflow acquired pursuant to local customs, if any prevailed in the particular community. Or if not, it was extended simply to informal diversions of water and application thereof to beneficial use. Alaska.-The situation in this jurisdiction differed from those elsewhere. The "Compiled Laws of the Territory of Alaska, 1913" contained repro- ductions of section 9 of the Act of Congress of 1866 and the amendment of 1870,36 providing protection of rights to water vested by local laws, customs, and court decisions in the public domain jurisdictions.37 In the first volume of Alaska case reports, however, there is a decision, rendered in 1890, in which the Federal District Court recognized the appropriation doctrine. The court held that prior appropriators of water were 32Colo. Rev. Stat. Ann. § 148-2-2 (1963); Oreg. Rev. Stat. § 537.800 (Supp. 1969); Wash. Laws 1889-90, ch. 21, § 15; Laws 1917, ch. 117, § 47. 33 La Jara Creamery & Live Stock Assn. v. Hansen, 35 Colo. 105, 108-109, 83 Pac. 644 (1905); Nevius v. Smith, 86 Colo. 178, 182-183, 279 Pac. 44 (1928); De Haas v. Benesch, 116 Colo. 344, 351, 181 Pac. (2d) 453 (1947). 3*Borman w.Blackmon, 60 Oreg. 304, 310-311, 188 Pac. 848 (1911). 35 Idaho Code Ann. § 42-107 (1948). 36 14 Stat. 253, § 9 (1866); 16 Stat. 218 (1870). "Alaska Comp. Laws Ann. §§ 47-3-7 and 47-3-8 (1949), deleted, Alaska Stat. Tables (Supp. 1966). |
