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Show 594 OTHER WATERS AT THE SURFACE States, there are court decisions to this effect. An appropriation of such spring water may be made for a certain period of the year, and a subsequent appropriation by others during the balance of the year.145 Likewise, a flow that does not reach the prior appropriator during the dry season may be appropriated during such period by others.146 The riparian doctrine likewise applies to waters of springs that feed watercourses, to the extent that such doctrine is recognized as applicable to watercourses in the West. In several States, there are court decisions applying the riparian doctrine to such springs. Such decisions, where the right of an owner of land to springs arising on his land and constituting sources of streams has been involved, have denied him exclusive rights to such springs and limited him to the ordinary rights of a riparian proprietor, qualified by the similar rights of other owners of land riparian to the main or tributary stream.147 Confined to Tract on Which Located Natural springs, if supplied by percolating waters, which do not flow from the land on which located, ordinarily belong to or are subject to the prior right of the owner of the land on which they arise. By statute or court decision, or both-with certain exceptions-this is the general rule throughout the West.148 Spring on Public Land The rule throughout the West is that appropriations of water on public lands of the United States are protected, notwithstanding the passing of title to such lands subsequently to private ownership. An entry man takes title, subject to vested and accrued water rights. This rule is based upon the Congressional Act of 1866, providing that the possessors of water rights vested under local customs, laws, and court decisions should be protected; the act of 1870, making all patents, preemptions, and homesteads subject to vested and accrued water and ditch rights; and the Desert Land Acts of 1877 and 1891, providing that the right to water on desert land should depend upon prior appropriation, and that the surplus should be held free for appropriation and use by the public.149 The United States Supreme Court has held that following the Act lASSuisun v. de Freitas, 142 Cal. 350, 75 Pac. 1092 (1904); Cleary v. Daniels, 50 Utah 494, 167 Pac. 820(1917). 146Beaverhead Canal Co. v. Dillon Elec. Light & Power Co., 34 Mont. 135, 85 Pac. 880 (1906). 141Scott v. Fruit Growers' Supply Co., 202 Cal. 47, 258 Pac. 1095 (1927); Slattery v. Dout, 121 Nebr. 418, 237 N.W. 301 (1931); Fleming v. Davis, 37 Tex. 173 (1872); Hollett v. Davis, 54 Wash. 326, 103 Pac. 423 (1909). 148See, e.g., the subtopics "Springs not flowing from land on which located" for California, Idaho, and Oregon, under "State Situations," infra. 14914 Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964); 26 Stat. 1096, 1097 (1891), 43 U.S.C. § 321 et seq. (1964). |
