PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

Development of the
Appropriative Right in California

Appropriative rights prior to 1872.
Appropriative water rights were developed
in California to satisfy the requirements of
miners who moved to the state when gold was discovered in the mid-
1800s. Miners typically did not own the land they worked, and water
was often diverted to supply placer and hydraulic mining claims and
other operations that were located far away from water supplies.
Typically, they mined in federal public domain. unsurveyed and thus
unpatentable at the time.7 This lack of property ownership and use
of water away from the watercourse prevented a claim of a riparian
right. Because there was no official state government at that time,
the miners developed their own custom of apportioning water based
on the concept of "first in time, first in right." Under this custom, the
first water user was entitled to divert all the water needed from a
stream, and a later user could be forced to stop or reduce diversions
if the supply were insufficient for all. The miners were required to act
diligently and put water to beneficial use or they risked forfeiting
their rights, which was known as the "use it or lose it" rule8
The customs and regulations of the miners were recognized and
adopted by the California Supreme Court in one of its earliest deci-
sions concerning water rights, Irwin v. Phillips. Irwin, page 146. In
Irwin, the plaintiff owned a canal that diverted water to mining oper-
ations away from a stream. The defendants were miners who arrived
in the area at a later point in time, setting up their mining operations
on public domain land contiguous to a stream. The court found that
the defendants who claimed riparian rights did not have the nec-
essary ownership of the land and that the issue was controlled by
appropriative rules. The court then decided the case according to the
first-in-time, first-in-right. prior appropriation doctrine, holding that
between two users of water on public domain lands the water user

Hydraulic gold mining more than 100 years
ago-an early "appropriative" water right

Before 1872, appropriative rights were
developed under court rules.

lands contiguous to streams. Gallatin v.
Corning Irr. Co. (1912) 163 CaI. 405, 413.
However, this use may be governed by
other provisions, such as area-of-origin
limitations and the needs of fish and
wildlife, which are now beneficial uses.
Water Code ~~ 10505,11460, 11461.

7 Rogers and Nichols. ~ 4. pages 21-22.
8 Hutchins, pages 41M43.

40 CALIFORNIA WATER