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Show 256 APPROPRIATION OF WATER retroactive effect of the legislation upon appropriations already made on the public lands was declared and established by the United States Supreme Court. What Congress did, in the Court's opinion, was to recognize an existing right of possession-which by reason of the Government's silent acquiesence it was in duty bound to do-rather than to establish a new right.160 But it did even more than that. The effect of the Acts of 1866 and 1870 was not limited to rights acquired before 1866 but reached into the future as well. It approved the policy of appropriation as recognized by local laws, customs, legislation, and judicial decisions, as the test and measure of private rights in and to the nonnavigable waters on the public domain.161 Appropriators on unsurveyed public lands were no longer to be regarded as even technical trespassers. They were rightful occupants.162 (2) Relation to local customs and laws. The Act of 1866 applies specifically to appropriative rights that "have vested and accrued" and that "are recognized and acknowledged by the local customs, laws, and decisions of courts." The consistent policy of the United States Government, according to a Federal court in 1931, "has been * * * to allow the citizens of the various states to work out their own system of law with relation to water rights without intervention or adverse legislation by the federal government."163 A few years later the Supreme Court held that the effect of the Desert Land Act was not to curtail the power of the States affected to legislate as they might deem wise with respect to water rights. It left each of them free "to determine for itself to what extent the rule of appropriation or the common law rule in respect of riparian rights should obtain."164 It follows that claims of right that are not recognized and acknowledged by these local laws are not protected by the Congressional legislation.165 (3) Early State court views regarding land-water relationship. For many years, high courts of California, Oregon, and Washington took the position that the right to appropriate water was confined to waters flowing over public lands of the United States or of the State. This came about because of the historical origin of the western appropriation doctrine on public lands, and of the measures taken by Congress to protect water rights acquired on the public 160 Jennison v. Kirk, 98 U. S. 453, 459 (1879); Broder v. Water Co., 101 U. S. 274, 276 (1879). 161 California Oregon Power Co. v. Beaver Portland Cement Co. 295 U. S. 142, 154-155 (1935). 162Ely v.Ferguson, 91 Cal. 187,190, 27 Pac. 587 (1891). 163 United States v. Central Stockholders' Corporation of Vallejo, 52 Fed. (2d) 322, 329 (9th Cir. 1931). 164California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 163-164 (1935). x6iMcKenzie v. Moore, 20 Ariz. 1, 4-5, 176 Pac. 568 (1918); San Joaquin & Kings River Canal &Irr. Co. v. Worswick, 187 Cal. 674, 682-684. 685, 203 Pac. 999 (1922); Taylor w.Abbott, 103 Cal. 421, 423-424, 37 Pac. 408 (1894). |
