OCR Text |
Show Literally read, this language seems to require no more than that an entryman have an appropriative water right, regardless of whether appropriative rights are superior or subordinate to other classes of water rights, such as riparian or correlative rights. Some doubt, however, is cast upon this interpretation by statements of the United States Supreme Court in the case of California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). In that case the Court had before it the question whether a homestead patent issued in 1885 for land abutting on a stream carried with it the common law riparian right. The Court held that it did not, declaring that the Desert Land Act severed water from the soil and that the patent simply conveyed title to the land. In reaching this result the Court delved into the background of the Desert Land Act, making the following statements which have a relevance to the question at hand: For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, lh stat. 251, 253, the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a * *[69] beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a 111-39 |
Source |
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] : |