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Show 18 THE RIPARIAN DOCTRINE lands remain in Government ownership, therefore, riparian rights are not asserted as against intending appropriators.69 In the landmark California Oregon Power Company case arising in Oregon, the United States Supreme Court held that following the Congressional desert land legislation of 1877, a patent issued for lands in a desert land State or Territory, under any of the land laws of the United States, "carried with it, of its own force, no common-law right to the water flowing through or bordering upon the lands conveyed," (emphasis added) but that all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated States, with the right in each to determine for itself to what extent the rule of appropriation or the common law rule in respect of private rights should obtain.70 The Court noted the lack of harmony among the State courts that had spoken on the matter. Approval was expressed of Oregon and South Dakota decisions that the effect of the Desert Land Act was to abrogate the common law rule with respect to all lands thereafter passing to private ownership; and the Washington and California courts were held to be in error in applying it only to desert land entries.71 After the California Oregon Power Company case had been decided, the supreme courts of both California and South Dakota referred to the statements in the opinion therein that it remained for each state to determine for itself to what extent the appropriation or riparian doctrine should obtain respecting these nonnavigable waters by grantees of Federal lands; and both courts held that their local laws had been, and still were, to the effect that riparian rights should accrue to patentees thereof.72 It was recognized by the California Supreme Court in an early case that the effect of a grant by the United States of public lands is subject to exceptions where the water is reserved from the grant by its own terms or as a result of Congressional legislation granting the land or authorizing the patent or other muniment of title.73 1877. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155-158 (1935). See Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 531, 89 Pac. 338 (1907); San Joaquin & Kings River Canal & Irr. Co. v. Worswick, 187 Cal. 674, 686, 203 Pac. 999 (1922), certiorari denied, 258 U.S. 625 (1922). 69 But see "Time of Accrual of Riparian Right-Protection of title by relation back," infra, with respect to settlers on the public domain. 70California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 163-164 (1935). Desert Land Act, 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 71 Hough v. Porter, 51 Oreg. 318, 383-407, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909); Cook v. Evans, 45 S. Dak. 31, 38-39, 185 N.W. 262 (1921); Still v. Palouse Irr. & Power Co., 64 Wash. 606, 612, 117 Pac. 466 (1911); San Joaquin & Kings River Canal & Irr. Co. v. Worswick, 187 Cal. 674, 690, 203 Pac. 999 (1922). 72 Williams v. San Francisco, 24 Cal. App. (2d) 630, 633-638, 76 Pac. (2d) 182 (1938), hearing denied by supreme court (1938); Williams v. San Francisco, 56 Cal. App. (2d) 374, 378-381 (1942), hearing denied by supreme court (1943), certiorari denied, 319 U.S. 771 (1943);Platt v. Rapid City, 67 S. Dak. 245, 248-250, 291 N.W. 600 (1940). "Lux v. Hoggin, 69 Cal. 255, 336, 339, 4 Pac. 919 (1884), 10 Pac. 674 (1886). |