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Show 60 THE RIPARIAN DOCTRINE Hence, a diversion from a stream on the public domain that was recognized by local laws became, by reason of the consent of the United States as expressed in the Act of 1866, effectual to confer upon the diverter the riparian rights in the stream pertaining to the lands of the United States abutting thereon, on the theory that as proprietor of the land the United States by that act granted a part of its property in its land to such diverter.305 The Supreme Court of the United States in the California Oregon Power Company case declared its views on this matter by saying, among other things,306 that if the Acts of 1866 and 1870307 did not constitute an entire abandonment of the common law rule of running waters insofar as the public lands and running waters were concerned, they foreshadowed the more positive declarations in the Desert Land Act of 1877.308 In one of its early water-rights cases, the Court stated that "the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common law doctrine of riparian proprietorship with respect to the waters of those streams."309 Holders of possessory rights.-In the early mining days in California, the principle was developed that parties holding possessory rights in separate parcels of land, title being in the United States, have the rights equivalent to riparian owners in the waters of any stream flowing naturally over both parcels.310 A contention that a possessor's claim of right in Federal land is based upon unlawful occupation cannot be raised by parties who claim no interest in the land. Occupancy of the claimant constitutes sufficient title as against such a contention, the character of possession of the occupant being a matter to be settled between him and the Federal Government.311 Grantees.-As shown previously under "Accrual of the Right-Source of Title to Land-Federal land grants," the United States Supreme Court held that following the enactment of the Desert Land Act,312 if not before, 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 the lands conveyed. Whether the grantee took title to a riparian right in the water depended altogether on the laws of the State in which the land was situated.313 305Duckworth v. Watsonville Water & Light Co., 170 Cal. 425, 432,150 Pac. 58 (1915). 306California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155-158 (1955). 30714 Stat. 253, § 9 (1866); 16 Stat. 217 (1870). 308 19 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 309Atchison v. Peterson, 87 U.S. 507, 512 (1874). 310 See Dripps v. Allison's Mines Co., 45 Cal. App. 95,100, 187 Pac. 448 (1919). 311Duvall v. White, 46 Cal. App. 305, 310,189 Pac. 324 (1920). 31219 Stat. 377 (1877), 43 U.S.C. § 321 et seq. (1964). 313California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 158, 163-164(1935). |
