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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 167 would remain forever buried in the earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake, became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes, was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains. The waters of rivers and lakes were consequently carried great distances in ditches and flumes, constructed with vast labor and enormous expenditures of money, along the sides of mountains and through canons and ravines, to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of these ditches and flumes, and the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims. These regulations and customs were appealed to in controversies in the State courts, and received their sanction; and properties to the values of many millions rested upon them. * * * Until 1866, no legislation was had looking to a sale of the mineral lands. * * * Resort to common law principles.-An ever-recurring consciousness of the importance of mining and associated water rights is evident in the early decisions of the California Supreme Court.32 In 1857, the court observed that the California judiciary had incurred responsibilities not faced by other American courts with respect to a large class of cases involving a great mining interest dependent upon the use of water; that without direct precedent or specific legislation, it was necessary to resort to analogies of the common law.33 One such analogy related to controversies over possession of land between persons without title in which the real owner was absent,34 the matter being decided according to the rules of law regarding priority of possession of land. "The diversion of water was declared to be the equivalent of possession and the doctrine was laid down that he who was first in time was first in right." Another indulgence in common law principles related to the doctrine of presumption, under which it was presumed from the general legislative situation that everyone who wished to appropriate water or to dig gold on the public domain within California had a license from the State to do so, provided that the prior rights of others were not thereby infringed.35 These two "See, for example, Hoffman v. Stone, 7 Cal. 46, 49 (1857); Crandall v. Woods, 8 Cal. 136, 141 (1857). 33Bear River & Auburn Water & Min. Co. v. New York Min. Co., 8 Cal. 327, 332-333 (1857). "Palmer v. Railroad Commission, 167 Cal. 163,170-171,138 Pac. 997 (1914). 35Conger v. Weaver, 6 Cal. 548, 556-558 (1856);Hill v. King, 8 Cal. 336, 338 (1857). |