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Show PROPERTY CHARACTERISTICS 487 based, on the oral grant to satisfy the statute for minimizing perjured claims and opportunities for fraud, and (b) if there are equitable grounds for enforcing the contract, whether found in facts supporting an equitable estoppel or facts justifying avoidance of unjust enrichment or relief from fraud. Privity between claimant and original appro priator.-The doctrine of prior appropriation as recognized and applied throughout most of the West had its initiation and early development on the public domain. As a result, the judicial rules with respect to conveyance of appropriative rights were developed largely in connection with public lands. A settler in good faith on the public domain had in the first instance, of course, only possessory rights in the land and water, which he could validly transfer to another settler by verbal sale as well as by way of written instrument. In this case the purchaser entered upon possession, and he eventually obtained from the United States formal title to the parcel of land with its appurtenant water right. But settlers did not always sell their rights to newcomers. In vari- ous instances they simply abandoned their possessions and moved else- where. In some such situations, another settler would come upon the previously occupied tract, with perhaps some buildings, planted crops, and an irrigation ditch, of which he would take possession and would begin operations. In others, there may have been three or more succes- sive occupants, each of whom took over a partly developed but clearly abandoned settlement and operated it for a time, the last one remaining and eventually obtaining his patent. The question then was, to what date did the completed water right relate? Although, as noted above, there was for a time some disagreement among the courts as to whether a verbal sale of a water right exercised in connection with privately owned land operated ipso facto as an abandonment of the water right, there was general agreement on the principle that where there was in fact an abandonment and cessation of use by the original appropriator, another person with whom there was no privity of estate, who resumed the discontinued use of the water through the same ditch and on the same land, could not thereby relate his priority back to the date of the original appropriation.258 The right of the latest claimant in such case, as against other appropriators, will have priority from the date of his own possession and appropriation, and not from the date of the original construction of the ditch ..and appropriation by some other person under whom he does not hold, and 358 Union Mill &Min. Co. v. Dangberg, 81 Fed. 73, 103 (C.C.D. Nev., 1897). "The right of a person claiming an appropriation of water cannot be tacked on to that of a mere squatter who, while he may have irrigated the land, has abandoned it and has not transferred his interest in the land or irrigation works to the claimant or his predecessors," In re Silvies River, 115 Oreg. 27,105, 237 Pac. 322 (1925). |
