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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 171 widely practiced in the settled parts of Utah without general authority from the legislature and without specific recognition by the supreme court. In various other parts of the West, also, in both mining and agricultural areas, appropriations of water were being made without general authority or judicial recognition by the States and Territories concerned but pursuant to local customs. The second period-about 1875 to 1900-witnessed the local statutory recognition of the appropriation doctrine in all of the contiguous Western States and Territories in which this had not occurred previously. During this period, the intent of the legislature to authorize the prior appropriation of water for beneficial purposes generally was expressed in each of the present jurisdictions of Idaho, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and Washington.54 But in many areas in these jurisdictions, water was used for mining and agricultural purposes long before the local appropriation customs were thus legalized. In Alaska, recognition of the doctrine of prior appropriation was, until 1966, chiefly judicial. The United States District Court at Sitka recognized and applied the principle as early as 1890, holding that prior appropriations were entitled to protection under the Act of Congress of 1866.55 This Act of 1866 and the amendment thereof in 1870s6 were reproduced in the first Territorial compilation, issued in 1913.57 In 1966, a century after the Act of 1866, the legislature of the State of Alaska enacted a Water Use Act.58 This act provides a system for the appropriation and use of water under authority of the Department of Natural Resources and establishes a Water Resources Board, the chief duty of which is to inform and advise the Governor on all matters relating to the use and appropriation of all water in the State. The appropriation doctrine has never been recognized in Hawaii.59 Congressional Legislation As noted earlier, the United States was the owner of the lands upon which the American customs of appropriating water for mining purposes originated, State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 217,182 Pac. (2d) 421 (1945). Wyoming: Ten. Wyo. Comp. Laws 1876, ch. 65. S4Idaho: Idaho Laws 1881, p. 267. Kansas: Kans. Laws 1886, ch. 115. Nebraska: Nebr. Laws 1889, ch. 68; see Laws 1877, p. 168. North Dakota: Ten. Dak. Laws 1881, ch. 142, repealed N. Dak. Rev. Codes 1895, p. 1518, new enactment, Laws 1899, ch. 173. Oklahoma: Terr. Okla. Laws 1897, ch. XIX. Oregon: Oreg. Laws 1891, p. 52. South Dakota: Terr. Dak. Laws 1881, ch. 142. Texas: Tex. Gen. Laws 1889, ch. 88. Utah: Utah Laws 1880, ch. XX; Laws 1897, p. 219. Washington: Wash. Sess. Laws 1889-1890, p. 706; Sess. Laws 1891, ch. CXLII. "Noland v. Coon, 1 Alaska 36, 37-38 (1890). "14 Stat. 153, § 9 (1866); 16 Stat. 218 (1870). "Terr. Alaska Comp. Laws § § 151 and 152 (1913). 58 Alaska Laws 1966, ch. 50, Stat. § 46.05.010 et seq. (Supp. 1966). 59Carter v. Territory of Hawaii, 24 Haw. 47,57 (1917). |
