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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 293 making appropriations, or tjiey adopted methods developed in much older mining regions. (See "Origins of the Appropriation Doctrine" in chapter 6.) In any event, their overall system was followed in the extension of the mining industry to other western regions, particularly in the Northwest, and it was adopted by the California Legislature in enacting the first procedural water appropriation statute in the West. Need for formal procedure. -In the absence of a statutory procedure for appropriating water, there is no record of the appropriation or, if a custom of filing and recording is followed, it is of local value only. And it is unofficial. Establishment of an appropriative right in such an environment depends largely upon testimony of other parties, which becomes increasingly unavailable as the "old-timer" witnesses grow old and die. Among conflicting claims upon a water source, many of which may have been made within a short period of time, relative priorities are understandably difficult to determine. As water uses, particularly for irrigation, developed in the West, something official became needed-some inducement to give specific notice of intent and to record it. Thus, there came a widespread practical need for formalizing appropriation procedures-for attaining at least an approach to order and legality in the initiation of an appropriation. Purpose of early statutory procedures. -During the 1850's and 1860's, demands upon California water supplies grew enough to move the legislature to take action. This resulted in enacting a procedure as a part of the Civil Code of 1872.364 By this time, the methods of appropriating water that were established by custom in the mining camps had become well-known, and they were appreciated as practical means of giving notice of and recording the appropriator's intention. So in effect the California Legislature codified, for statewide application, the substance of the mining camp rules and regulations, as construed by the courts. Various other western legislatures followed this lead. These other legislative bodies reached the stage of statutory declarations of appropriative methods at varying times as determined demands for improvement accumulated among their constituents. By far the greatest activity in this particular was in the 1880's. The California Supreme Court viewed the whole purpose of the 1872 Civil Code procedure as a means of providing evidence whereby parties claiming under hostile diversions could establish their respective priorities in use of the water, and could avoid former difficulties in establishing the precise dates of inception of their respective enterprises.365 In an earlier decision, this court stated that the legislative purpose "was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation" which had been expounded and applied by the courts prior to the enactment.366 **Cal. Civ. Code § § 1410-1422 (1872). 365Palmer v. Railroad Commission, 167 Cal. 163,172,138 Pac. 997 (1914). 366De Necochea v. Curtis, 80 Cal. 397, 401, 20 Pac. 563, 22 Pac. 198 (1889). |
