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Show 35 priation for a beneficial use was entitled to protection-a rule evidenced not alone by legislation and judicial decision, but also by local and customary law and usage as well.141 This doctrine of prior appropriation involved a marked departure from the riparian doctrine, prevailing in the East, under which only an owner of lands riparian to a stream may make reasonable use of its waters, and only on his riparian lands.142 Acts of 1866 and 1870.-Claiming under formal patents taken out under the 1862 Homestead Act and the 1864 Pacific Railway Act, patentees on lands containing streams claimed la California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142,154 (1935). With reference to the appropriation doctrine, under which rights are not confined to owners of land riparian to a stream, the Supreme Court has said that "Under this doctrine, diversion and application of water to a beneficial use constitute an appropriation, and entitle the appro- priator to a continuing right to use the water, to the extent of the appropriation, but not beyond that reasonably required and actually used. The appropriator first in time is prior in right over others upon the same stream * •• *." Arizona v. California, 298 U. S. 558, 565-566 (1936). See also infra, pp. 156-158. 142 See hum v. Haggin, 69 Cal. 255, 390, 10 Pac. 674, 753 (1886). Eecently tracing the historical origins of the common-law riparian doctrine, the Supreme Court said, "As long ago as the Institutes of Justinian, running water, like the air and the sea, were res communes-things common to all and property of none. Such was the doctrine spread by civil-law commen- tators and embodied in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law. "Riparian rights developed where lands were amply watered by rainfall. The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over pri- vate lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many varia- tions, each seeking to provide incentives for development of its natural advantages. These are set forth in SMvely v. Bowlby, 152 U. S. 1." United States v. Gerlaeh Live Stock Co., 339 U. S. 725, 744-745 (1950). See also infra, pp. 155-156. |
