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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 285 It is reasonable to conclude that in addition to the making of grants by the government, the taking of water for community and even for individual use was permitted, or perhaps tolerated, in various areas as a matter of local custom which did not rise to the dignity of a general statute. But as to whether the principle of priority of appropriation, in the form in which it spread throughout the West, and methods of enforcement, were a part of this customary law, there appears to be little or no available authoritative documentary evidence. The author is not aware of any published account of public enforcement of priorities of private appropriative water rights in the Spanish-American Southwest. The Arizona court's conclusions that "the right to appropriate and use water for irrigation has been recognized longer than history, and since earlier than tradition"323 need not be questioned. Regardless of those declarations, it can be stated with equal assurance that there is nothing in the present water laws of either Texas or California, in which States the Spaniards also made settlements, to suggest that a principle of prior appropriation of water prevailed in the jurisdiction under Spanish or Mexican sovereignty.324 Spanish-Mexican water law made little if any impression on the water law of the State of California other than with respect to water rights of American cities that succeeded Spanish or Mexican pueblos. In Texas, after years of controversy, the high courts finally held that lands in Spanish and Mexican grants riparian to the Lower Rio Grande do not have appurtenant rights to irrigate with the river waters.325 No question of Spanish or Mexican law relating to appropriation of water was involved in this suit. Utah Mormon colonies.- Originally, rights to the use of public streams of water in Utah were acquired, either by actual diversion and application of water to beneficial use, or by legislative grant.326 For 50 years after the beginning of irrigation in this region, appropriations of water were made by diverting the water from stream channels and applying it to beneficial use, without any specific statutory procedure for acquiring appropriative rights. In these cases, the intention of the appropriator and usefulness of the purpose were tests in determining validity of the right.327 In 1852, the Utah legislature authorized the county courts to make grants of water privileges.328 As administered by the county courts, an appropriator was required to petition the court for a water privilege, which the court 323Clough v. Wing, 2 Ariz. 371, 380, 17 Pac. 453 (1888). "Evidences of it are to be found all over Arizona and New Mexico in the ancient canals of a pre-historic people, who once composed a dense and highly civilized population." 324Compare Hutchins, Wells A.: "The California Law of Water Rights," pp. 41-51 (1956), and "The Texas Law of Water Rights," pp. 102-106 (1961). 325Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S. W. (2d) 502 (1962), affirming 346 S. W. (2d) 853 (Tex. Civ. App. 1961). 326 Wrathall v. Johnson, 86 Utah 50, 80, 40 Pac. (2d) 755 (1935). 327Hague v. Nephilrr. Co., 16 Utah 421, 429-430, 52 Pac. 765 (1898). 328Terr. Utah Laws 1852, p. 38, § 39, "An Act in Relation to the Judiciary." |