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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 169 reservoir of plaintiff was a clear violation of a vested right of property, acquired by virtue of a prior appropriation, of which he could not be divested for any private purposes or for the benefit of a few individuals. While the elemental principles of prior appropriation of water for various beneficial purposes were being developed more than a century ago in repeated decisions of the California Supreme Court, mining and water customs were coming to the fore in other western jurisdictions as well. An example is found in Montana, where the appropriation doctrine was first established primarily in mining regions pursuant to customs and rules of mining camps introduced from similar developments in California.44 Another example is Nevada, where in its first reported decision on water rights law the supreme court followed the "doctrine * * * well settled in California" that as between persons claiming rights to the use of water by appropriation alone, the one "has the best right who is the first in time."45 Likewise in Idaho, the supreme court in its first reported decision relating to rights to the use of water stated the law of the jurisdiction to be that the first appropriation of water for a useful or beneficial purpose gives the better right thereto;46 and in another early one, it severely criticized the trial court for rendering a judgment that not only failed to take account of plaintiffs prior appropriation, but purported to award priorities in an aggregate amount much greater than the maximum quantity of water flowing in the stream at its highest stage,47 On the other hand, the Kansas Supreme Court held that prior to the enactment of the water appropriation statute of 1886,48 there had been in the State no legislative or judicial recognition of rights to the use of water by priority of possession; that local customs to that effect were invalid.49 "Steams, v. Benedick, 126 Mont. 272, 274-275, 247 Pac. (2d) 656 (1952); Bailey v. Tintinger, 45 Mont. 154, 166,122 Pac. 575 (1912);Maynard v. Watkins, 55 Mont. 54, 55, 173 Pac. 551 (1918). 45Lobdell v. Simpson, 2 Nev. 274, 277, 278 (1866). See Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 543 (1869);Barnes v. Sabron, 10 Nev. 217, 233 (1875). "Malad Valley In. Co. v. Campbell, 2 Idaho 411, 414,18 Pac. 52 (1888). "Hillman v. Hardwick, 3 Idaho 255, 259-262, 28 Pac. 438 (1891). Among other things, the supreme court said that: "In fact, the decision of the learned district judge in this case stands alone. We have been unable, by the most diligent search, to find a precedent or parallel for it. Heroically setting aside the statute, the decisions and the evidence in the case, he assumes the role of Jupiter Pluvius, and distributes the water of Gooseberry Creek with a beneficent recklessness, which makes the most successful efforts of all the rain wizards shrink into insignificance, and which would make the hearts of the ranchers on Gooseberry dance with joy, if only the judicial decree could be supplemented with a little more moisture. The individual who causes two blades of grass to grow where but one grew before is held in highest emulation as a benefactor of his race. How, then, shall we rank him who, by judicial fiat alone, can cause four hundred inches of water to run where nature only put one hundred inches? (We veil our faces, we bow our heads, before this assumption of judicial power and authority.)" Id. at 260. ^Kans. Laws 1886, ch. 115. 49 Clark v.Allaman, 71 Kans. 206, 240-241, 80 Pac. 571 (1905). |