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Show 178 Thus, some would find the roots of the modern appropriation doctrine in the civil law, some in the practices of irrigation, and some in the customs of the miners as later copied by irriga- tors.158 All these factors, as well as Spanish and Mexican colonization practices, undoubtedly made contributions to the doctrine. In any event, nature suggests that the dominant fac- tor was the aridity generally prevailing in portions of the West, together with quantitatively disproportionate, highly irregular, and maldistributed stream flows. Thus we find indications in judicial opinions that the riparian doctrine is not suited to the conditions and the needs of Western States.159 Whatever the origin of the appropriation doctrine, however, its impact was later reflected in federal legislation. Contests arose between appropriators under this possessory system and patentees under the 1862 Homestead Act and the 1864 Pacific Railway Act, the latter claiming to be the successors of the United States with the right to oust prior appropriators of waters on the lands patented.160 Soon thereafter, Congress enacted the Act of 1866.161 This statute made good appropria- tions in being as against a later patent to riparian parcels of the public domain.162 An 1870 supplement subjected patents, pre- emptions, and homesteads to vested water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the 1866 Act.163 158 See, e. g., State Wateb Law in the Development op the West, Report to the Water Resources Committee by its Subcommittee on State Water Law, National Resources Planning Board, p. 6 (1943) ; Long, A Treatise on the Law of Irrigation, § 70, p. 126 (2d ed. 1916); I Wiel, Water Rights in the Western States, § 66, p. 66 (3d ed. 1911). "• See, e. g., United States v. Rio Grande Irrigation Co., 174 U. S. 690, 704 (1899) ; Clough v. Wing, 2 Ariz. 371, 381,17 Pac. 453, 456 (1888). 160 Act of May 20,1862,12 Stat. 392, see#43 U. S. O. 161 et seq.; Act of July 2,1864, § 3,13 Stat. 365, 367; I Wiel, Water Rights in the Western States, §87, p. 94 (3d ed. 1911). 161R. S. § 2339, from Act of July 26, 1866, § 9, 14 Stat. 251, 253, now codified as part of 43 U. S. O. 661. See also supra, pp. 35-37. 192 United States v. Gerlaoh Live Stock Co., 339 U. S. 725, 748 (1950). 183 R. S. § 2340, from Act of July 9,1870, § 17,16 Stat. 217, 218, now codified as part of 43 U. S. C. 661. See also supra, p. 36. |