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Show 254 APPROPRIATION OF WATER detail. But the court concluded that this did not constitute a determination to pursue the particular projects with a definite intention to actually go ahead with them and thereby appropriate water for such purposes.152 THE LAND FACTOR IN APPROPRIATING WATER The general rule in the West is that one at least rightfully in possession of land, even though not the owner, may appropriate water for use in connection with such land. Suggestions have been made that under some circumstances a trespasser on land may appropriate water in connection with that land. Assertions pro and con on these matters of landownership qualification in appropriating water are discussed under succeeding topics. The matter of appurtenance of the appropriative right to land is dealt with in chapter 8. Historical Development of the Relationship Public Domain Prior to Congressional legislation.-\n California water law, the appropri- ation doctrine originated and developed on the public domain without specific guidance from either the California legislature or Congress, but as a result of local customs formulated and applied in the mining camps of the Sierra Nevada foothills, and of interpretations by the State courts of pertinent common law principles. The early California courts held that locations on public land for mining purposes and diversions of water from their natural channels stood on the same footing. Each was the exercise of an implied license from the State with the acquiescence of the Federal Government. As between conflicting claims of location of land and appropriation of water, priority in time would govern.153 Thus, as between possessors of land or water, where the true owner was not intervening, principles of equity were applied. The presumed license to work the mines and to appropriate water was dependent upon a proviso that the prior rights of others be not thereby infringed. The principle was thus established that the first appropriator of water of a stream passing over Federal public lands-who had no title to the soil because it was still in the Government-had the right to insist that the water be subject to 152 Four Counties Water Users Assn. v. Middle Park Water Conservation Dist., 161 Colo. 429, 425 Pac. (2d) 262 (1967), cert, denied, 389 U.S. 1049 (1967), reh. denied, 390 U.S. 976(1968). 153 See Jennison v. Kirk, 98 U. S. 453, 457-458 (1879); Invin v. Phillips, 5 Cal. 140, 146-147 (1855); Hill v. Newman, 5 Cal. 445, 446 (1855); Conger v. Weaver, 6 Cal. 548, 555-556 (1856); Hoffman v. Stone, 7 Cal. 46, 48 (1857); Crandall v. Woods, 8 Cal. 136, 141, 144 (1857);Bear River & Auburn Water &Min. Co. v.New York Min. Co., 8 Cal. 327, 332-333 (1857);Palmer v.Railroad Commission, 167 Cal. 163, 170-171, 138 Pac. 997 (1914). |
