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Show 164 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES California Gold Rush Gold was discovered in the foothills of the Sierra Nevada, California, in January 1848. This development and the resulting mining industry had a profound influence upon the political and economic growth of California and on the development of water law throughout the West. As water was required in much of the gold mining processes, rights to the use of water were of fundamental importance. This mineral area was Mexican territory when gold was discovered but was ceded to the United States less than 6 months later by the Treaty of Guadalupe Hidalgo. There was no organized government there in the early years, nor much law except that made by the miners who helped themselves to the land, gold, and water under rules and regulations of their own making as they went along. In the words of the United States Supreme Court, speaking through Justice Field who had been Chief Justice of California, the miners "were emphatically the law-makers, as respects mining, upon the public lands in the State."23 The rules and regulations of the miners were made by and for the individual camps and hence varied from one locality to another, but essentially the principles that they embodied were of marked uniformity. These principles related to the acquisition, holding, and forfeiture of individual mining claims, based upon priority of discovery and diligence in working them. And to the acquisition and exercise of rights to the needed water were applied comparable principles-posting and recording notice of intention to divert a specific quantity of water, actual diversion and application of water to beneficial use with reasonable diligence, continued exercise of the right, priority in time of initiating the appropriation, and forfeiture of priority for noncompliance with the rules-in other words, the doctrine of prior appropriation of water for beneficial use. These property rights in land and water were thus had, held, and enjoyed under local rules and were enforced by community action. The California legislature took note of the miners' practices,34 but did not authorize appropriation of water until 1872.25 This was done in a short statute which essentially codified principles and practices that had been developed in the mining camps of the Sierra. In the meantime, these customs had been copied in mining areas of other States and Territories. Many water cases decided in the early years in several Western States involved relative rights to the use of water for mining purposes or for milling connected with mining.26 "Jennison v. Kirk, 98 U. S. 453, 457 (1879). MFor example, the California practice act (Cal. Stat. 1851, ch. 5, § 621) provided that: "In actions respecting 'Mining Claims,' proof shall be admitted of the customs, usages, or regulations established and in force at the bar, or diggings, embracing such claim; and such customs, usages, or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decision of the action." 2SCal. Civ. Code, § § 1410-1422 (1872). 26 See, for example, Hutchins, Wells A., "The California Law of Water Rights," p. 146 (1956), and "The Montana Law of Water Rights," pp. 6-7 (1958). |