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Show WATERS SUBJECT TO APPROPRIATION 233 entitled to protection, under the Act of Congress of 1866, in their prior rights to divert stream water acquired pursuant to local customs before regulations relating to water rights had been adopted in the local mining district.38 It is true a later decision in the first division, while not repudiating the appropriation doctrine but on the contrary specifically applying it to the facts of the case, held that the Act of Congress of July 26, 1866, was not in force in Alaska.39 But several years later, the court for the same division disagreed emphatically with the holding of the latter case on this point. For many years, the court declared, Congress, the Alaska miners, and the courts had acted on the premise that this statute had been extended to Alaska.40 In the meantime, the court for the third division held that section 9 of the Act of 1866 and the appropriation doctrine had been extended to Alaska by the Acts of 1884 and 1900.41 Judicial recognition of the appropriation doctrine in Alaska, then, preceded any Territory-wide water rights legislation. But this recognition in its turn was based on extension to Alaska of early Congressional statutes, the applicability of which was predicated on existence of local laws and customs in the mining areas of this jurisdiction. That such local customs were in effect, as well as rules and regulations of mining districts dating back at least to the 1880's, is noted in court opinions.42 Other jurisdictions.-In four other western jurisdictions, the doctrine of prior appropriation was recognized by the courts before the respective State or Territorial legislatures explicitly declared this basic water law policy. These are California, Nevada, Utah, and Oregon. (1) California. In the California practice act of 1851, the legislature took note of the "customs, usages, or regulations established and in force at the bar, or diggings" in actions respecting mining claims and thereby indirectly or **Noland v. Coon, 1 Alaska 36, 37 (1890). "Ketchikan Co. v. Citizens'Co., 2 Alaska 120, 123-126 (1903). *°McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, 322-323 (1907), affirmed sub nom. Thorndyke v; Alaska Perseverance Min. Co., 164 Fed. 657 (9th Cir. 1908). "Revenue Min. Co. \. Balderston, 2 Alaska 363, 367-368 (1905). 23 Stat. 26, § 8 (1884), replaced by 31 Stat. 330, § 26 (1900), 48 U.S.C. § 356 (1964). In 1966, the State of Alaska provided specifically for the appropriation and use of water. Alaska Stat. § 46.15.010 etseq. (Supp. 1966). 42 Rules and regulations governing appropriation and diversion of water from streams in the Harris mining district, adopted February 18,1882, and mostly copied from the California Civil Code § § 1410-1422 (1872), are set out in the opinions in McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308 (1907), affirmed sub. nom. Thorndyke v. Alaska Perseverance Min. Co., 164 Fed. 657 (9th Cir. 1908). See also, regarding mining district water rules, Noland v. Coon, 1 Alaska 36, 37 (1890); Madigan v. Kougarok Min. Co., 3 Alaska 63, 67 (1906); Miocene Ditch Co. v. Campion Min. & Trading Co., 3 Alaska 572, 585 (1908); Anderson v. Campbell, 4 Alaska 660, 665 (1913); Alaska Juneau Gold Min. Co. v. Ebner Gold Min. Co., 239 Fed. 638, 640-641 (9th Cir. 1917). |
