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Show 37 had grown up under its tacit consent and approval."146 And the Supreme Court soon declared that this legislation consti- tuted congressional recognition of the doctrine of right by prior appropriation.147 Pointing out that while the statutory lan- guage used was not "happy/' the Court has also said that Con- gress thereby recognized as valid the appropriation system gov- erning use of water which had grown up among occupants of the public lands under peculiar local necessities of their con- dition.148 At the same time, it noted that prior to the 1866 Act the claims of individuals to water were good "except as against the government." 149 The 1866 Act has also been characterized as "an unequivocal grant" for existing diversions of water on public lands-a voluntary recognition of a preexisting right of possession, rather than the establishment of a new one.160 And the Court has recently said that Congress thus "made good appropriations in being as against a later patent to riparian parcels of the public domain, and removed the cloud cast by adverse federal claims."151 Desert Land Act of 1877.-Soon after passage of the Acts of 1866 and 1870, Congress enacted the Desert-Land Act of 1877, which allowed desert land entries with a proviso that:152 the right to the use of water by the person so conduct- ing the same, on or to any tract of desert land of three hundred and twenty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropria- tion and use, together with the water of all lakes, rivers, ™Jennison v. Kirk, 98 U! S. 453, 459 {1898). inAtchison v. Peterson, 20 Wall. 507,513 (U. S. 1874). 148 Basey v. Gallagher, 20 Wall. 670, 683-684 (U. S. 1874). "• 20 Wall, at 681. Cf. Sturr v. Beck, 133 U. S. 541 (1890). 150 Broder v. Water Company, 101 U. S. 274, 275 (1879). m United States v. Gerlach Live Stock Co., 339 U. S. 725, 748 (1950). 152 Act of March 3, 1877, § 1, 19 Stat. 377, as amended, 43 U. S. O. 321. This provision applies only in California, Colorado, Oregon, Nevada, Wash- ington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and North and South Dakota. §§ 3, 8, 19 Stat. 377, as amended, 43 U. S. C. 323. |