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Show ESTABLISHMENT OF THE APPROPRIATION DOCTRINE IN THE WEST 175 Limitations on Congressional recognition. -There were two important limitations upon the recognition by Congress of the doctrine of appropriation in the Act of 1866 and subsequent legislation: (1) It was restricted to the public lands of the United States, and thus had no effect upon the water rights of private lands. (2) It applied only to appropriative rights that accrued under State laws. However, in view of the fact that so much land in the West was in public ownership during the period under consideration, the Congressional legislation was a powerful factor in the spread of the appropriative principle throughout the West. Appropriations under State procedures.-This discussion of the important relation of early Congressional legislation to the development of the appropria- tion doctrine in the West may have little bearing on the current Federal-State conflict over the ownership of water on the public domain and paramount rights of the United States therein. But it emphasizes the fact that in this series of statutes Congress recognized State customs and laws as applied to the appropriation of nonnavigable waters on the public domain, and neither set up nor authorized a general procedure under which an individual must initiate or perfect a right to appropriate such water. Whether initiated on the public domain or on private land, the individual made his application under the then existing State procedure. State Water Rights Administration Early appropriation procedures. -As noted earlier, all of the 17 contiguous Western States and Alaska have statutes providing for the appropriation of water. The earlier enactments were generally short; many of them provided for posting of a notice at the point of diversion and for filing a copy of the notice in the county records. They usually specified, also, a certain time within which construction must be commenced. In various States, the earliest statutes were enacted long after irrigation development had begun. In California, for example, the first legislative authorization to appropriate water was in 1872, whereas decisions of the California Supreme Court in controversies over water rights for mining, milling, and agriculture had been rendered at various times during the two preceding decades.75 Irrigation in Nevada began about 1849, as an incident to the early development of mining; yet there was no general legislation on the subject of irrigation water rights until 1866.76 The Nevada Supreme Court stated in 1914 that the greater portion of water rights in Nevada had been acquired before the passage of any statute prescribing a method of appropriation, and that such rights had been recognized uniformly by the courts as being vested under the "Hutchins, Wells A., "The California Law of Water Rights," pp. 41-51 (1956). 76Hutchins, Wells A., "The Nevada Law of Water Rights," pp. 3-5 (1955). |