OCR Text |
Show 539 Background.-As we earlier noted, the riparian doctrine prevailing in the East permits only an owner of lands riparian to a stream to make use of its waters, and only on his riparian lands.249 We also pointed out that, under the arid conditions generally prevailing in parts of the West, a custom evolved whereby acquisition of water by prior appropriation for bene- ficial use was entitled to protection. The first in time is prior in right. Nor are appropriative water rights confined to riparian owners. Evolving from custom and usage, the doctrine of ap- propriation was early recognized in legislation and judicial decision. Today, while some of the 17 Western States still variously recognize the riparian doctrine, it has been specifically repudiated by eight of them. On the other hand, the appro- priation doctrine is variously recognized in all 17 States. Similarly, we have previously observed that contests arose be- tween appropriators under this possessory system and patentees under the 1862 Homestead Act and the 1864 Pacific Railway Act, the latter claiming to be successors of the United States with the right to oust prior appropriators of waters on the lands patented.250 Soon thereafter, Congress passed the Act of 1866, a statute making good appropriations in being as against later patents to riparian parcels of the public domain..251 An 1870 supplement subjected patents, preemptions, and homesteads to accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the 1866 Act.252 Significant also is the proviso in the Desert Land Act of 1877, which makes the right to the use of water dependent upon "bona fide prior appropriation" not to exceed the amount of water "actually appropriated, and necessarily used for the pur- pose of irrigation and reclamation." *¦ With respect to that part of the public domain subject to the 1877 Act, the Supreme 849 See supra, pp. 34r-35,155-158. *" See supra, pp. 35-36. asl See supra, pp. 35-37. For the text of the relevant portion of the Act of 1866, see supra, p. 36. ** For the text of the relevant portion of the Act of 1870, see supra, p. 36. 858 For the full text of the relevant portion of the Act of 1877, see supra, pp. 37-38. |