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Show 34 Jefferson said that "it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state."136 In keeping with such views, Congress accorded to settlers a preference right in providing for disposal of the public domain in Preemption Acts dating back to 1801.138 It has been de- scribed as a preference for "actual tilling and residing upon a piece of land."137 Moreover, under the first Homestead Act of 1862, provision was made for more fully effectuating the policy of settling the public domain.138 But in the arid West, settlement gave rise to problems not present in the more humid regions. As the Supreme Court observed in California Orgeon Power Co. v. Beaver Portland Cement Co.:139 From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico-an area greater than that of the original thirteen states-the lands capable of redemp- tion, in the main, constituted a desert, impossible of agricultural use without artificial irrigation. Appropriation and Riparian Doctrines.-Among miners in the Pacific States and Territories, where precious metals were mined on public lands of the United States, a custom evolved whereby the first appropriator of waters in the streams on such lands for mining purposes was held to have a better right than others to use the waters.140 Under these conditions and the aridity prevailing in parts of the West, a rule became gener- ally recognized that the acquisition of water by prior appro- 185 The Writings of Thomas Jefferson, p. 18 (memorial ed. 1904). 1W See, e. g., Act of June 22,1838, 5 Stat. 251. 137 Donaldson, The Public Domain, p. 214 (1884). "* Act of May 20, 1862, 12 Stat. 392, see 43 U. S. O. 161 et seq. In 1828, similar legislation had been favorably reported by the Commission on Public Lands which recommended "that small tracts of eighty acres be given to the heads of such families as will cultivate, improve, and reside on the same for five years." 32 American State Papers: Public Lands, vol. v, p. 449 (Dickins and Forney ed.). 1S»295 U. S. 142, 156 (1935). 14OAtchi8on v. Peterson, 20 Wall. 507, 510 (U. S. 1874). |