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Show 234 APPROPRIATION OF WATER impliedly recognized the appropriation doctrine.43 However, there was no direct legislation pertaining to water rights until enactment of the Civil Code of 1872, which became effective January 1, 1873.44 In the meantime-from 1853 to the end of 1872-52 decisions in controversies over the use of water were rendered by the California Supreme Court, the largest part of which involved diversions from watercourses for mining, milling, and irrigation purposes. In several cases decided in 1853 and 1855, actions involving mining water rights were decided pursuant to the principle of prior appropriation of water.45 The Civil Code enactment in 1872 was essentially a codification of appropriative principles and practices that had developed in the various mining camps of the State. (2) Nevada. A large part of the interstate boundary between California and Nevada lies along or close to the Sierra Nevada,-an area in which so many of the California mining camps were located. The influence of mining water customs which grew up on the California side was felt in Nevada as well as in other western mining jurisdictions. The appropriation doctrine "well settled in California," to the effect that as between appropriative claimants to the use of stream flow the first in time has the best right, was followed by the Nevada Supreme Court as early as 1866.46 Legislative recognition of the appropriation doctrine, however, was not accorded until 1889.47 (3) Utah. In early Territorial days, rights to the use of Utah streamflows for irrigation and domestic purposes were acquired either by actual diversion and application of water to beneficial use, or by legislative grant.48 For 50 years, diversions were so made without existence of specific statutory procedure for acquiring appropriative rights. In the earliest Territorial supreme court decision that was rendered with respect to use of water, the principle of prior appropriation of water was recognized.49 The first statutory recognition of accrued rights to water acquired by appropriation came 2 years later. The first statutory procedure for future appropriation of water was provided in 1897, shortly after the attainment of statehood.50 Irrigation with water diverted from Utah streams, particularly close to the points of their emergence from the mouths of canyons 43Cal. Stat. 1851, ch. 5, § 621. 44Cal. Civ. Code § § 1410-1422 (1872). ASEddy v. Simpson, 3 Cal. 249, 252 (1853); Stiles v. Laird, 5 Cal. 120, 122-123 (1855); Irwin v. Phillips, 5 Cal. 140, 145-147 (1855). "Lobdell v. Simpson, 2 Nev. 274, 277-279 (1866). 47Nev. Laws 1889 ch. 113, repealed by Laws 1893, ch. 127. In 1875, the Nevada Supreme Court expressed its opinion that there was then no statute of the State that recognized the right of prior appropriation of water for purposes of irrigation: Barnes v. Sabron, 10 Nev. 217, 232 (1875). 48 Wrathall v. Johnson, 86 Utah 50, 80,40 Pac. (2d) 755 (1935). "Crane v. Winsor, 2 Utah 248, 253 (1878). 50Utah Laws 1880, ch. 20; Laws 1897, ch. 52. |
