| OCR Text |
Show ELEMENTS OF THE APPROPRIATI VE RIGHT 523 or superior right over an appropriator for any other useful purpose, other than with respect (a) to priority of appropriation, and (b) to cases in which statutory preferences apply. In 1875, the United States Supreme Court referred to a California case decided 20 years before and stated that:416 Ever since that decision" it has been held generally throughout the Pacific States and Territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. * * * Referring to its own recent decision in Atchison v. Peterson,411 in which there were considered the respective rights of miners to running waters on the mineral lands of the public domain, the Court said that:418 The views there expressed and the rulings made are equally applicable to the use of water on the public lands for the purposes of irrigation. No distinction is made in those States and Territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one. Some Statutory Listings The chief purpose of the earliest water appropriation statutes of various Western States was to authorize diversions from stream channels for the irrigation of agricultural land, and some of them mentioned irrigation only. In fact, the first State water official in South Dakota was designated "State Engineer of Irrigation,"419 and the first North Dakota water rights administra- tion statute was entitled "Irrigation Code."420 Some of the present administrative control statutes list several purposes for which water may be appropriated. Some others state generally that the purpose must be beneficial, and later they single out purposes of use in providing for the type of information with respect to specific purposes that must be contained in the application to make an appropriation, or in directing attention to some other matter. A few of the more comprehensive current listings are: 416Basey v. Gallagher, 87 U. S. 670, 681-683 (1875), referring to Tartar v. Spring Creek Water & Min. Co., 5 CaL 395 (1855). *"Atchison v. Peterson, 87 U. S. 507, 510-513 (1874). 4lsBasey v. Gallagher, 87 U. S. 670, 682 (1875). 419 S. Dak. Laws 1890, ch. 104. His duties were concerned with developing irrigation within the State, not supervision over water rights. 420 N. Dak. Laws 1905, ch. 34. |
