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Show 258 APPROPRIATION OF WATER rights attach are public waters of the State, subject to appropriation.171 The appropriable character of the stream flow does not change as it passes from public to private land and vice versa. (4) Places of diversion and use. The cases dealing with appropriations of water on the public domain have been concerned chiefly with the location of the point of diversion of the water. Of course, this is an essential factor in orienting the diversions of conflicting claimants on the same stream and in establishing relative priorities. However, diversions of water from streams on the public lands for the purpose of making beneficial use of the water on other public lands were customarily made in the early mining period in the Sierra foothills of California, in the Mormon colonies in Utah under the Latter-day Saint Church leadership, and in many places elsewhere in the West both before and after the public land laws became locally operative. That this might be lawfully done was asserted in decisions in various cases.172 Relative possessory rights in the tract on which the diversion was made, and that to which the water was taken for mining or irrigation or other use, were matters of land law, not water law. (5) Additional case references. Some additional decisions in courts of the United States and of Territories and States on the effect of the Congressional legislation discussed herein are cited in the accompanying footnote.173 171Meridian v. San Francisco, 13 Cal. (2d) 424, 445-447, 90 Pac. (2d) 537 (1939). An appropriation validly made on private land has fully as much force as one made on public land: Caviness v. La Grande In. Co., 60 Oreg. 410, 423-424, 119 Pac. 731 (1911). "Defendants' contention that the doctrine of appropriation of water applies only to public lands has been rejected by this court." Drake v. Smith, 54 Wash. (2d) 57, 61, 337 Pac. (2d) 1059 (1959). 172 For Some California cases, see Ely v. Ferguson, 91 Cal. 187,190, 27 Pac. 587 (1891); Williams v. Harter, 121 Cal. 47, 50, 53 Pac. 405 (1898); Sherwood v. Wood, 38 Cal. App. 745, 749, 177 Pac. 491 (1918). '"Territorial and State courts: Gila Water Co. v. Green, 27 Ariz. 318, 324-327, 232 Pac. 1016 (.1925); Parker v.Mdntyre, 47 Ariz. 484, 491, 56 Pac. (2d) 1337 (1936). Silver Lake Power & In. Co. v. Los Angeles, 176 Cal. 96, 101-102, 167 Pac. 697 (1917). Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Beaver Brook Res. & Canal Co. v. St. Vrain Res. & Fish Co., 6 Colo. App. 130, 40 Pac. 1066 (1895); Edwards v. Roberts, 26 Colo. App. 538, 144 Pac. 856 (1914); Bowers v. McFadzean, 82 Colo. 138, 257 Pac. 361 (1927). Youngs v. Regan, 20 Idaho 275, 278-280, 118 Pac. 499 (1911). Gallagher v. Basey, 1 Mont. 457, 460-462 (1872), affirmed, 87 U. S. 670, 681-684 (1875); Atchison v. Peterson, 1 Mont. 561, 569 (1872), affirmed, 87 U. S. 507, 510-514 (1874)\Ryanv.Quinlan, 45 Mont. 521, 531, 124 Pac. 512 (1912). Jones v. Adams, 19 Nev. 78, 86, 6 Pac. 442 (1885); Twaddle v. Winters, 29 Nev. 88, 105-106, 85 Pac. 280 (1906), 89 Pac. 289 (1907). State ex rel. State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 269-270, 182 Pac. (2d) 421 (1945); State ex rel. Bliss v.Dority, 55 N. Mex. 12, 21-22, 225 Pac. (2d) 1007 (1950), appeal dismissed, 341 U. S. 924 (1951). Hough v. Porter, 51 Oreg. 318, 383-386, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), |