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Show THE LAND FACTOR IN APPROPRIATING WATER 261 Private Lands Appropriator's Ownership of Land Used General rule: At least rightful possession.-According to the weight of authority, one at least rightfully in possession of land, even though not the owner, may make a valid appropriation in connection with such land, which water right remains his own property. Some variations that occur from State to State are refinements of this general rule. On the public domain the original appropriators of water were technically trespassers-they were "squatters," with no formal right of possession or even of entry. But the Federal Government silently acquiesced in the occupancy of its lands by miners and appropriators of water, and Congress finally acknowledged and confirmed the right of these people to take these steps.185 This legislation the United States Supreme Court held was both retroactive and prospective in its operation.186 When the Federal land laws became operative in these far western regions, lawful occupancy with intent to appropriate the land and the water, and accompanying acts that evidenced the intent, were sufficient to put in motion the process of acquiring patent to the land and completion of the appropriative right. The patent evidenced private title to the land. The priority of the appropriative right related back to the first act in the process of appropriation, whatever that may have been under the laws of the particular jurisdiction. From the time of enactment of the Act of 1866, it was the clearly expressed intent of Congress that appropriations of water could be made on the public lands of the United States in accordance with local laws and customs, and that necessary rights of way across the public land could be obtained therefor. Questions of title to the land and title to the water right lay in different fields of jurisprudence. The former related to Federal land law, the latter to local water law. To allow individuals to appropriate water on the public domain during the long period in which the appropriation doctrine was developing in the West, it was necessary to authorize appropriations by possessors of the land for the simple reason that the United States was the only owner. A glance at the western appropriation laws enacted during the last half of the 19th century shows that questions of relationships between appropriation of water and possession of the land on which the water might be applied and the appropriation completed, were in the minds of many early legislators. The first Territorial legislature of Colorado declared that persons claiming, owning, or possessing rights or title to land on the bank or margin or in the neighborhood of any stream should be entitled to use of the water thereof for purposes of irrigation and making the land available to the full extent of the 18514Stat. 253, § 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 186 This is discussed above under "The Land Factor in Appropriating Water-Historical Development of the Relationship-Public Domain." |
