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Show 284 APPROPRIATION OF WATER Nevertheless, this facet of administrative control over the handling of public water supplies can be understood more clearly by taking note of the two phases of appropriative procedure that preceded it-(a) the period of nonstatutory methods of appropriation, extending roughly from the 1840's to the 1870's; and (b) the ensuing period of early statutory methods which persisted-although they eventually were largely discarded-into the present century. Let it be again emphasized that the instant discussion relates to water of watercourses. Ground water appropriative rights are considered later, in chapters 19 and 20. Nonstatutory Originally, all means of appropriating western stream waters were non- statutory-no Federal or State or Territorial statute declared the steps that must be taken in acquiring the right. At present, most Western States have statutes that provide for taking certain steps; and a majority of these statutory procedures are either held or generally considered to be the exclusive means of making valid appropriations. Idaho is an outstanding exception. There the law is settled to the effect that one who wishes to appropriate water may follow the statutory procedure or may disregard it completely, as he chooses. This feature is noted below in discussing current statutory methods. Earliest Western Locations The earliest appropriations of water in the West were made in Spanish settlements in certain areas in the Southwest, in the Mormon colonies of Utah, and during the California Gold Rush. Spanish settlements in the Southwest.-As noted in chapter 6, questions concerning the existence of the appropriation doctrine in the American Southwest under Spanish rule have been debated and the answers are still subject to some disagreement. The New Mexico Supreme Court declared that the law of prior appropriation existed under the Republic of Mexico at the time New Mexico was acquired by the United States, but gave no details.321 The Arizona Supreme Court said that in the Mexican State of Sonora, of which Arizona formed a part, prior rights arose under Mexican law only as the result of grants from the government, but that appropriations were permitted to some extent by local custom-again no details.322 Many small community acequias were constructed by Spanish-Americans in San Luis Valley, Colorado, as well as by such settlers and Indians up and down the length of the Rio Grande in New Mexico and into Texas, the water rights of which came into existence with their first use of the water. 321 United States v. Rio Grande Dam & Irr. Co., 9 N. Mex. 292, 306-307, 51 Pac. 674 (1898). See also State ex rel. State Game Commission v. Red River Valley Co., 51 N. Mex. 207, 217, 182 Pac. (2d) 421 (1945). 322Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 74-75, 4 Pac. (2d) 369(1931). |
