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Show 162 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES these regions, not from those of lesser antiquity development in other parts of the West. On the other hand, it is noteworthy that the Spaniards made settlements in California and Texas as well; yet that there is nothing in the water laws of either of these States to suggest that a principle of prior appropriation of water prevailed under Spanish or Mexican sovereignty.13 Opinions differ as to just how the appropriation doctrine came to the southwestern areas that had been occupied by the Spaniards and Mexicans. According to one school of thought, the Spanish settlers brought this doctrine from Europe with their civil law, which had been derived from the civil law of Rome. Thus, with respect to the Spanish, French, and Mexican penetration of what is now the American Southwest, it is said that:14 The extent to which this early western development has spread over and influenced the customs and laws of the subsequently created states may be debatable. But that such an influence existed, having as its background the old Roman water law, cannot be denied. How remarkably alike, in many vital respects, are the Roman laws concerning water and water rights and the doctrine of appropriation as interpreted and applied, for example, in Colorado. * * * Another view is that exclusive rights in the Spanish and Mexican settlements arose only by way of grants from the sovereign, or as the result of local custom-as noted by the Arizona Supreme Court, above15-which would be prescription.16 Apparently, exclusive rights to the use of water on nonriparian lands in the New World of Spain were obtainable and, in various instances, they doubtless were obtained from the sovereign. Perhaps some form of "appropriation" of water can be found in some of the local customs. But in view of the paucity of historical examples, establishment of the well-known principle of priority of appropriation under the Spanish-Mexican regime, in the form in which it is so widely applied in the West today, is lacking in satisfactory proof and therefore, to say the least, is questionable. Mormon Colonization of Utah The colonization of Utah began in 1847 when the Mormons, under the personal leadership of Brigham Young, entered the Great Salt Lake Valley. This desert, unoccupied except by some Indians, then belonged to Mexico. 13Compare Hutchins, Wells A.: "The California Law of Water Rights," pp. 41-51 (1956), and "The Texas Law of Water Rights," pp. 102-106 (1961). 14 Report and Recommendations of Committee of National Reclamation Association, "Preservation of Integrity of State Water Laws," 165-168 (1943). lsMaricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 74-75, 4 Pac. (2d) 369 (1931). 16 Mann, G. C, "Riparian Irrigation Rights as Declared and Enforced by the Courts, and Protected by the Statutes, of Texas," Proceedings, Water Law Conferences, Univ. of Texas, pp. 169, 172 (1952, 1954). |