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Show RIGHTS-OF-WAY FOR WATER CONTROL AND RELATED PURPOSES 269 of another or to inundate other than his own land, a verified copy of written conveyance of easement or option therefor.230 After all, the granting of a permit to one who does not have access to the source of supply would scarcely be a business-like proceeding. It could easily lead to trouble. Late in the 19th century, long before the California Water Commission Act was passed, the supreme court of that State held that one might make an appropriation of water by taking peaceable possession of a constructed ditch, which would be good as against all the world except the true owner and those holding under or through him. Such appropriator, said the court, must account to the true owner until his possession ripens into a title by prescription. When this transpires, his right as against other appropriators would have priority from the date of his own possession and appropriation.231 RIGHTS-OF-WAY FOR WATER CONTROL AND RELATED PURPOSES Public Lands Public Lands of the United States Early Acts of Congress.-Under "The Land Factor in Appropriating Water," above, attention is called to the effect of the Congressional legislation of 1866 and 1870232 on the development of the appropriation doctrine in the West. These statutes related not only to water rights on the public lands, but also to rights-of-way necessary for their effectuation and enjoyment. Section 9 of the Act of 1866 provided that the right-of-way for construction of ditches and canals, for the purpose of effectuating appropria- tive rights on the public domain that had vested and accrued under local customs, laws, and court decisions, should be acknowledged and confirmed. The amendatory Act of 1870 was passed to clarify the Congressional intent that grantees of the United States would take their lands charged with the existing servitude.233 This statute provided that all patents, preemptions, and homesteads should be subject, not only to vested and accrued water rights, but also to ditch and reservoir rights connected therewith, acquired or recognized by section 9 of the 1866 statute. In 1879, the United States Supreme Court construed the legislation in two decisions of major importance, both of which went to the United States Supreme Court from the Supreme Court of California.234 230Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rule 215.9 (1970 Rev., Jan. 1970). 231 Utt v. Frey, 106 Cal. 392, 396, 39 Pac. 807 (1895). 232 14 Stat. 253, § 9 (1866); 16 Stat. 218 (1870). 233California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-155 (1935). ™Jennison v. Kirk, 98 U.S. 453, 456-457, 459 (1879); Broder v. Water Co., 101 U.S. 274, 275-277 (1879). |
