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Show named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. * * * The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. *[52] [Pp. 163-164; italics added, except to publici juris.]* It is clear then that whether a desert land entry in Arizona can be based upon percolating water depends upon whether, under the law of Arizona, percolating water is subject to the doctrine of prior appropriation. This question was settled only relatively recently in the case of Bristor v. Cheatham, supra. To appreciate the full significance of that case, a brief consideration of the history of the Arizona law on percolating water is necessary. The first pronouncement by the Arizona Supreme Court on the subject of percolating water apparently was in the case of Howard v. Perrin, 76 Pac. 460 (1904), aff'd 200 U.S. 71 (1906). In that case, the Court stated that percolating water, as distinguished from water in an underground stream, belonged to the owner of the soil and was not subject to appropriation by another. In Maricopa County Municipal Water Conservation Dist. No. 1 et al.v. Southwest Cotton Co. et al., 4 p. 2d 369 (1931), III-7 |
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Original book: [State of Arizona, complainant v. State of California, Palo Verde Irrigation District, Coachella Valley County Water District, Metropolitan Water District of Southern California, City of Los Angeles, California, City of San Diego, California, and County of San Diego, California, defendants, United States of America, State of Nevada, State of New Mexico, State of Utah, interveners] : |