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Show 270 APPROPRIATION OF WATER (1) Jennison v. Kirk. Counsel contended that only the right to the use of water on public lands acquired by priority of possession is dependent on local customs, laws, and decisions of courts, and that the rights-of-way over such lands for construction of ditches and canals is conferred absolutely on those who have acquired the water right. In rejecting this contention, the Supreme Court said that the object of the section was to give the sanction of the proprietor, the United States, to possessory rights and to prevent them from being lost on a sale of the lands. The section proposed no new system; it sanctioned, regulated, and confirmed a system already established. As so expounded, the section foreclosed further proprietary objection by the United States to applications that rested on local custom.235 (2) Broder v. Water Company. In this case private rights of ownership of lands of two groups were involved-those in one group acquired after the date of passage of the Act of 1866, and those of the other acquired before the enactment. As to a canal of one of the parties, so far as it ran on the date of enactment through land of the United States-in which private rights were subsequently acquired-"this act [of Congress] was an unequivocal grant of the right of way, if it was no more."236 As to the other lands granted under an earlier act containing a reservation in favor of pre-existing rights, an appropriator who had constructed a canal across the lands before they were granted in 1862 and 1864 need not rely on the Act of 1866. The Court considered that legislation "rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one."237 That the Supreme Court in Broder v. Water Company regarded the Act of 1866 as "an unequivocal grant" for existing diversions on the public lands was reiterated by that Court in 1950.238 "Thus Congress made good appropriations in being as against a later patent to riparian parcels of the public domain, and removed the cloud cast by adverse federal claims." And in 1935, the Court held that the effect of the Acts of 1866 and 1870 was not limited to rights acquired before 1866 but reach into the future as well.239 (3) Other cases. Although these Congressional statutes speak only of ditches, canals, and reservoirs, it was the view of a United States Court of Appeals that such terms are broad enough to include rights-of-way for "dams, flumes, pipes, and tunnels as analogous or incidental to, and discharging the functions of, such reservoirs, ditches and canals."240 235 United States v. Gerlach Live Stock Co., 339 U.S. 725, 748 (1950). 236Broder v. Water Co., 101 U.S. 274, 275 (1879). 237Id. at 276. 238 United States v. Gerlach Live Stock Co., 339 U.S. 725, 748 (1950). 239 California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-155 (1935). 240 Utah Light & Traction Co. v. United States, 230 Fed. 343, 345 (8th Cir. 1915). For a recent case discussing these statutes, see Hunter v. United States, 388 Fed. (2d) 148, 154-155 (9th Cir. 1967). |