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Show OVERVIEW 5 c. The Law of Appropriation Early water uses in the West were initiated bv miners and farmers, who often were trespassers on the public domain, and who found it necessary to divert water from the streams to the point of use. There were few courts and no established water law cfoctrines to govern these uses, and so the water users operated in accordance with local rules and customs, which they developed to control water use prac- tices in their respective areas-in much the same manner that miners developed rules applicable to local mining districts. When water-use conflicts reached the courts, the decisions rendered usually were in accordance with the local rules and customs, and the doctrine of riparian rights was rejected as unsuited to the needs of the arid regions of the West. Development and settlement were de- pendent upon successful farming and mining, and these in turn were dependent upon use of water from the watercourses. Under the ri- parian rights doctrine, the water would be left in the stream for use of riparian owners (which usually was the Federal Government in the West), and settlement of the area would not have been possible. So the courts decreed that riparian rights would not be recognized, and that water could be withdrawn from the stream by anyone who could put it to a beneficial use. For its part, Congress consented to the withdrawal and use of water in accordance with the customs and laws of the respective States. The law of appropriation was born. The barest essence of the law of appropriation is that a water right is acquired by diverting water from a natural watercourse and applying it to a beneficial use. The water right carries a "priority" date, which is the date that the first act was done to initiate the right, and the consequence of the priority date is that the water right will have a superior call upon the watercourse over all rights subsequently initiated. When a stream becomes "over appropriated," so that the call upon the stream is in excess of the water in it, then the owner of the oldest water right is first entitled to his full de- livery of water, and then the next oldest right is fully satisfied, and so on down the line until the water supply is exhausted-and those with the most recently acquired rights get no water at all. d. Combination of Riparian and Appropriation Rights It would be misleading to suggest that the States can be neatly classified as appropriation or riparian. It is true that riparian law was applied in the East and appropriation law developed in the West, but it is not true-as commonly assumed-that there are 19 appropriation States (from North Dakota to Texas, and States situ- ated west thereof) and 31 riparian States (those remaining). Some Western States (such as Texas, California, and Hawaii), have always recognized certain riparian water rights, and some "pure" appropria- tion States which have emphatically and repeatedly rejected the entire regime of riparian rights (such as Utah, Nevada, and Idaho), have consistently applied some riparian concepts, such as reliction and accretion. Moreover, the Eastern States are moving toward more comprehensive controls of water use, and all of the States are de- |
