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<br />001828 <br /> <br />. <br /> <br />. <br /> <br />Nevada, Utah, and Arizona, and within that part of New <br />Mexico in the drainage of the Colorado River, excepting <br />only those lands which had been granted by the previous <br />sovereign. With this transfer of ownership of the <br />public lands, there passed also the ownership of the <br />rights to use the waters appurtenant thereto. <br /> <br />" <br /> <br />. . . . <br /> <br />"By the Desert Land Act of l877 (19 stat. 377; <br />43 U.S.C. ~ 32l), Congress reserved for 'appropriation <br />and use of the public' non-navigable surplus waters <br />upon the public domain in the States and Territories <br />referred to in the Act. In Californla Oregon Power <br />Co. v. Beaver Portland Cement Co., 29:;' U.S. lLl.2, l62 <br />(l935), the Supreme Court held that 'as the owner of <br />the public domain, the government possessed the power <br />to dispose of land and water thereon together, or to <br />dispose of them separately.' It was further held that <br />by this act the waters upon the public domain were <br />'severed' from the land, and that thereafter a patent <br />of public lands did not carry with the land any right <br />to use the water thereon except las fixed or acknow- <br />ledged by the customs, laws, and judicial decisions <br />of the state of their location.' <br /> <br />II <br /> <br />. . . <br /> <br />"It is on this background of Federal law that the <br />validity of the Colorado doctrine of state ownership <br />of unappropriated waters must be considered. We ask: <br />Where in the record in this case or elsewhere is there <br />evidence of a grant to the States of the Lower Basin <br />by a previous title holder of any of the waters, or <br />of the right to use the same, of the Colorado River? <br /> <br />"The answer is plain. There is no such evidence. <br /> <br />" <br /> <br />"Additionally, the waters of concern here are <br />navigable waters. The Desert Land Act applies,oply <br />to non-navigable waters on the public domain."l! <br /> <br />y <br /> <br />Footnote on next page. <br /> <br />40. <br />