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

who was first-in-time had a superior right, regardless of the location
being contiguous or noncontiguous to a stream. Irwin, page 147.
The appropriation doctrine, which originally was applied only to
the mineral regions of the state, was judicially expanded to cover
other uses, establishing priorities between mining, agricultural, and
other claims. See Rupley v. Welch (1863) 23 Cal. 452, 455-457; Gillan
v. Hutchinson (1860) 16 Cal. 153, 156. Water was considered to be
appropriated if diverted and used for the intended purpose before an-
other user intervened and claimed a right to it. No notice of the claim
was required to be posted or recorded. De Necochea v. Curtis (1889)
80 Cal. 397, 408. Miners did occasionally post a notice of appropria-
tion, but this notice was invalid unless the appropriator constructed
the diversion works and put tbe water to beneficial use. Weaver v.
Eureka Lake Co. (1860) 15 Cal. 271, 274. Thus, although the priority
was established as of the date of the notice. the right to appropriate
did not vest until the diversion works were completed and the water
was actually used. Nevada County v. Kidd (1869) 37 Cal. 282. 311.
Appropriative rights from 1872 to 1914. Before 1872, the appro-
priative rights doctrine evolved solely through court decisions. In 1872,
the legislature formally recognized the prior appropriation doctrine
through the enactment of Civil Code Sections 1410-1422. (This princi-
ple is still embodied in ~ 1414.) The code provided: "As hetween ap-
propriators, the first in time is the first in right." Civ. Code ~ 1414 (1872).
This legislation also codified an alternative appropriation procedure
to the customs established earlier by the miners, although appropria-
tion still depended upon the taking and possession of the water.
The new appropriation procedure in place between 1872 and
1914 required a potential appropriator to both post a notice in a
conspicuous place at the point of diversion and record the notice
with the office of the county recorder within ten days of posting. The
notice had to provide specific information, such as the amount of
water to be diverted, the means of diversion, and the purpose and
place of use. Civ. Code ~ 1415 (1872). The appropriator had to begin
construction work within sixty days of posting the notice and to work
diligently and continually to deliver water to the planned location of
the use. Civ. Code ~~ 1416-1417 (1872).
1'1:0 actual permission was required from the state to appropriate
water under these Civil Code sections. Instead, the amount of water
an appropriator could divert was limited to the amount that could be
applied to beneficial use pursuant to reasonable methods of diversion
and up to the amount stated in the notice. Holders of appropriative
rights could change the point of diversion, the place of use, and the

In 1872, the California legislature estab.
fished an alternate procedure/or acquiring
an appropriatioe right.

The new procedure called for posting and
recording notice; it did not replace earlier
methods.

Under the new statutory procedure, no
state permission was required in order
to appropriate water.

Chapter 2 Water Rights in California 41