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Show 166 THE PUEBLO WATER RIGHT purchase or condemnation, all within the scope of due process. Some municipal attempts to obtain new water supplies, necessarily from great distances, have aroused local hostility and protracted litigation. Probably in most such instances the procedures were based on constitutional grounds; the difficulties may have arisen chiefly over the methods actually used. However, the author is unaware of anything in the appropriation water law of any Western State that would sanction the right of any city to make an appropriation of water from a stream and, by virtue of that appropriation alone-with no compensation to anyone-obtain a right that may supersede and eventually destroy all private water rights that have been exercised by many individuals along that stream.87 Yet the high courts of California and New Mexico have indicated that an American municipal successor to an ancient pueblo may do that by obtaining a court decree adjudicating its ancient pueblo water right. And this, despite the New Mexico Supreme Court's declaration that it saw nothing in the theory of pueblo rights inconsistent with the doctrine of prior appropriation and beneficial use. There is another feature of the pueblo-appropriation contrast which may involve practical potentialities. Under the California doctrine, the pueblo water right dates from the time of establishment of the pueblo. An effect of the Treaty of Guadalupe Hidalgo, which was proclaimed July 4, 1848, was necessarily to foreclose the establishment of any more Mexican pueblos in the area ceded to the United States. Therefore, the priorities of all pueblos to which American cities succeeded relate back at least to 1848-more than a century ago. From the pueblo rights doctrine as declared by the California courts, it would follow that in a jurisdiction in which such doctrine is the law, a city that can trace its succession to a Spanish or Mexican pueblo to which a pueblo land grant was made by the sovereign may-if not precluded by other circumstances-find itself in position to assert, without payment of compensa- tion to existing water users, paramount rights to all the waters of a stream that flows through or by the city-waters of which the city and its inhabitants may never have used a drop for more than 100 years, but a large part of which may have been used for upward of a century as the lifeblood of farming communities. Under the appropriation doctrine, on the contrary, the priority of a municipality's water right for future use ordinarily dates from the first assertion of a claim of right therefor.88 It does not relate back to a date of vesting declared by the courts for the first time a half-century or a century 87 A 1931 Texas statute, which is an exception to the usual appropriation laws in this regard, subjects appropriations made thereafter of water for other than domestic and municipal purposes from all streams, except the Rio Grande, to further appropriations by municipalities for domestic and municipal purposes, without compensation. See note 86 supra. "Although in Texas it may date from 1931 for all streams except the Rio Grande. See note 86 supra. |