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Show •-47- SOVEREIGN RIGHTS AND RELATIONS IN THE CONTROL AND USE OF AMERICAN WATERS* .ERNEST C. CARMAN ** PART III The closing paragraphs of Part II brought this review down to the year 1876, which marks the admission into the American Union of Colorado, the first State to recognize in its constitution the existence of that region which has since become known in legal literature as the "arid west." It had become more or less established as the custom of the country, while under the territorial sovereign*- ty and mostly in the proprietary ownership of the United States, that -water in this sparsely peopled, dry, mountainous country became the property of the first taker without regard to riparian ownership or the well known rule of the English corimon law that the riparian proprietor is entitled to the continued flow of a stream through his land. "Mining was the principal industry in the arid west; but a few of the valleys were irrigable and thus potentially suitable for agri- culture. Strictly riparian use of the flowing water was of little benefit in the settlement and development of this region. Ac early as the year 1866 Con- gress had recognized a right in settlers, even though technically trespassers on the public lands, to priority in the use of water based on first possession and application to beneficial purposes as against all except the United Sta-fces itself,116 Although the congressional enabling act for the admission of Colorado into ** (Of the Los Angeles Bar.) ' ~~~* * (Concluded from the December, 19^9* an(* February, 195°* issues, consult, supra, pp, 8I4. and lj?2) ll6Act of July 26,, 1866, c. 262, ll+ Stat. at L. 251. This act, entitled "An Act Grant-ing the Right of "fay to Ditch and Canal Owners over the Public Lands, and for other Purposes," relates almost entirely to mining claims and lands, but contains in Par. 9 a provision "That whenever, by priority of pos- session, rights to the use of water for mining, agricultural, manufacturings or other purposes * have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of the courts, the pos- sessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, how- ever, that whenever after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." This statute, the difference between prior appropriation in the arid west and riparian rights in the eastern states and the limits of each of these doctrines, the title and right of a prior appropriator on the public lands against all except the United States, and many other related points^ are cover- ed by the decisions of the United States Supreme Court in Atchison v. Peterson, 20 Wall. (U.S.) 507, 22 L. Ed. klk (I87I4.), aff*g 1 Mont. 561 (1872); Basey v. Gallagher, 20 Hall. (U.S.) 670, 22 L. Ed. i£2 (I875); Forbes v. Gracey ^k IT.S. |