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Show 47 of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any land- owner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provi- sions of this Act shall be appurtenant to the land irri- gated and beneficial use shall be the basis, the measure, and the limit of the right. In the recent Gerlach case, the Court noted evidence that ad- ministrative practice under the Reclamation Law has been to pay for water rights acquired under state law.189 Also, Mr. Jus- tice Douglas, concurring in part and dissenting in part, noted a conclusion by the Commissioner of Reclamation that the almost invariable practice of the Bureau has been to file notices of ap- propriations under state law without regard to whether the stream involved was navigable or nonnavigable.190 Speaking for the Court, Mr. Justice Jackson declared that it was imma- terial whether Congress could have chosen to take the rights there involved by exercise of its dominant navigation servitude, and after pointing to the language of Section 8, stated:191 We conclude that, whether required to do so or not, Con- gress elected to recognize any state-created rights and to take them under its power of eminent domain. On this point, Mr. Justice Douglas concluded that Congress, by Section 8:192 agreed to pay (though not required to do so by the Con- stitution) for water rights acquired under state law in navigable as well as nonnavigable streams. Section 8 also received attention in litigation between the States of Nebraska and Wyoming. In its 1935 opinion in Ne- m United States v. Gerlach Live Stock Co., 339 U. S. 725, 735 (1950). m 339 U. S. at 760. m 339 U. S. at 739, after referring to International Paper Co. v. United States, 282 U.S. 399, 407 (1931). Footnote at end of quote omitted. 182 339 U. S. at 761. 911611-61------5 |