OCR Text |
Show 288 APPROPRIATION OF WATER established, under varying circumstances and conditions, in this state."340 In fact, the first Oregon enactment on the subject declared that all existing appropriations made for beneficial purposes in accordance with laws, court decisions, or established local customs and regulations should be respected.341 Local customs prevailed in many western areas. They were often followed because the value of recording water claims in the event of later controversy became appreciated. But although valuable, posting and recording a customary notice was not indispensable to the validity of an appropriation.342 A valid prestatutory appropriation could be made by actually diverting the water from the stream, with intent to apply the water to a beneficial use, followed by an application to such use within a reasonable time.343 In early decisions, the Washington Supreme Court referred to the matter of appropriating water pursuant to community customs, identified the right so acquired with the declarations of Congress in the Act of 1866, and held that lack of Territorial procedural legislation did not impair the validity of the right.344 And in its first water rights decision, this court discussed the early establishment of local customs at miners' meetings, or by common agreement of all the people in the locality. Such agreement of all neighbors in a community that water can be and is appropriated by the first settlers in a certain way, said the court, was such a custom as the Congressional Act of 1866 designates as a vested right.345 In the statute of 1900 concerning a civil government for Alaska, Congress provided for recording notices and declarations of water rights, and authorized miners in any organized mining district to make rules and regulations governing such recording.346 This legislation sanctioned a practice that had begun long before when, pursuant to local customs, rules and regulations were established in mining districts not only governing the recording of all claims of water rights, but providing also an orderly procedure for the appropriation of water. 340In re silvies River, 115 Oreg. 27, 39, 237 Pac. 322 (1925). 341Oreg. Laws 1891, p. 52. ^Cook v. Evans, 45 S. Dak. 31, 39, 45-46, 185 N.W. 262 (1921), 186 N. W. 571 (1922). 343Application of Filippini, 66 Nev. 17, 22, 202 Pac. (2d) 535 (1949). 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 irrigation purposes: Barnes v. Sabron, 10 Nev. 217, 232 (1875). Much later, after the water rights administrative statute had been in effect for several years, the Nevada court observed that the greater portion of water rights pertaining to the streams of this State had been ac- quired before enactment of any statute prescribing a method of appropriation, and that such rights had been recognized uniformly by the courts as vested under the common law of the State: Ormsby County v. Kearney, 37 Nev. 314, 352,142 Pac. 803 (1914). 3AAEIlis v. Pomeroy Improvement Co., 1 Wash. 572, 577-578, 21 Pac. 27 (1889); Isaacs v. Barber, 10 Wash. 124, 128, 38 Pac. 871 (1894); Longmire v. Smith, 26 Wash. 439, 448, 67 Pac. 246 (1901). 345 Thorpe v. Tenem Ditch Co., 1 Wash. 566, 570, 20 Pac. 588 (1889). 346 31 Stat. 321, ch. 786, tit. 1, ch. 1, §§15 and 16, pp. 327-328 (1900), 48 U.S.C.A. §§119 and 383 (1952). |