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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 173 recognition of a preexisting right, which reached back to the time of formation of the State of California. The established doctrine of the Supreme Court was said to be that the rights of miners and appropriators of water for mining and agricultural purposes in regions in which such use of the water was an absolute necessity were rights which "the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866." The section of the Act of 1866 confirming such rights was, in the Court's opinion, "rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establish- ment of a new one."64 The act merely recognized the obligation of the Govern- ment to respect private rights which had grown up under its tacit consent and approval.65 It proposed no new system, but sanctioned, regulated, and con- firmed the system already established, to which the people were attached. Act of 187O.~An amendment of the Act of 1866, enacted July 9, 1870, provided that all patents granted, or preemption or homestead rights allowed, should be subject to any vested water rights, or rights to ditches and reservoirs used in connection therewith, as may have been acquired under or recognized by section 9 of the Act of 1866.66 The Act of 1866 had recognized water rights and rights of way on public lands as against the Government. The amendment of 1870 clarified the intent of Congress that the water rights and rights of way to which the 1866 legislation related were effective not only as against the United States, but also against its grantees-that anyone who acquired title to public lands took such title burdened with any easements for water rights or rights of way that had been previously acquired, with the Government's consent, against such lands while they were in public ownership. The Oregon Supreme Court characterized the amendment as a precautionary measure to remove doubts as to the legal effect of such patents.67 Desert Land Act of 1877.-This act provided that water rights on tracts of desert land should depend upon bona fide prior appropriation; and that all surplus water over and above actual appropriation and necessary use, together with the water of all lakes, rivers, and other sources of water upon the public lands and not navigable, should be held free for appropriation by the public for irrigation, mining, and manufacturing purposes, subject to existing rights.68 This act applied specifically to Arizona, California, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. An amendment in 1891 extended the provisions to Colorado.69 64Id. "Jennison v. Kirk, 98 U. S. 453, 459 (1879). 6616Stat.217 (1870). 61 Hough v. Porter, Oreg. 318, 383-386, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 6819 Stat. 377 (1877), 43 U. S. C. § 321 et seq. (1964). 69 26 Stat. 1096, 1097 (1891), 43 U. S. C. § 321 et seq. (1964). |