OCR Text |
Show THE LAND FACTOR IN APPROPRIATING WATER 25 5 his use and enjoyment,154 to the extent that he thus appropriated it before the rights of others attached,155 whether such others were locators of mining claims or appropriators of water.156 So far as public lands of the United States are concerned, the law of appropriation thus arose through the acts of persons who originally were technically trespassers on the public domain. Rights to water initiated in this way were later recognized by Congress, as against claims of subsequent entrymen, in statutes that contained no provision concerning the qualifications of appropriators. Hence the principle that one might appropriate water for use on public lands without regard to the question of title to the place of use.157 Congressional legislation and its effect. (1) Confirmation of right to appropriate water on the public domain. During the years immediately following the Civil War, Congress enacted three measures relating to appropri- ations of water on the public domain which profoundly influenced and stimulated the spread of the doctrine of prior appropriation throughout the Western States.158 This topic has been treated heretofore in some detail in connection with establishment of the appropriation doctrine in the West (see chapter 6). Briefly, for the present purpose, the Act of 1866 provided that the owners and possessors of vested and accrued appropriative rights on the public domain as recognized by local customs, laws, and court decisions should be protected in the same. And it acknowledged and confirmed rights of way therefor. The 1870 amendment of section 9 of the 1866 law provided that all patents, preemptions, and homesteads should be subject to water and ditch rights recognized by the Act of 1866. And the Desert Land Act of 1877 provided that water rights on desert lands should depend upon prior appropriation, all surplus water above such rights to be subject to appropri- ation by others. The Desert Land Act was construed by the United States Supreme Court as applying not only to desert entries in the States and Territories named, but to entries under other land laws as well.159 Thus, the right to appropriate water on the public lands-customary in the West from times of earliest settlements-was confirmed by Congress. And the wButte Canal & Ditch Co. v. Vaughn, 11 Cal. 143,153-154 (1858). 155 Union Water Co. v. Crary, 25 Cal. 504, 509 (lS64);Smith v. O'Hara, 43 Cal. 371, 375 (1872). 15tIrwin v. Phillips, 5 Cal. 140, 146-147 (1855); Crandall v. Woods, 8 Cal. 136, 143-144 (1857). 157 See discussions by Long, J. R., "A Treatise on the Law of Irrigation," 2d ed., § 102 (1916); Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. I, § 319 (1911); Kinney, C. S., "A Treatise on the Law of Irrigation and Water Rights," 2d ed., vol. II, §§ 687,766,767(1912). 158 14 Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 etseq. (1964). lS9California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142. 160-163 (1935). |