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<br />. <br /> <br />. <br /> <br />0008 <br /> <br />-6- <br /> <br />non-navigable waters which are sources of navigable streams "to <br />such an extent as to destroy their navigability. . . ."7./ <br /> <br />On the other hand, the two predecessor acts of the Desert land Act <br />both recognized and ratIfIed a pre-exIstIng rIght to poss~sslon of <br />water In accordance with local custom, laws and court decisions, see <br />14 Stat. 251, 253 (1866); 16 Stat. 217, 218 (1870); Broder v. Natoma <br />Water and Mlnlna Co.. 101 U.S. 274, 276 (/879), and neither statute was <br />expressly limited to non-navigable waters,~/ Moreover, The Supreme Court <br />has held that these two acts are not limited to rights acquired before <br />1866, but "reach Into the future as wel I . . . ."9/ Therefore, the <br />sIgnIfIcance of the Desert Land Act's I ImitatIon to non-navIgable waters <br />Is unclear. <br /> <br />Second, the Act's I imitation to sources on the public lands received <br />express recognition In Federal Power Commission v. OreGon, 349 U.S. <br />at 448 (1955), which held the Act Inapplicable to reservations of land <br />from the public domain, see 349 U,S. at 448, without distinguishing be- <br />tween whether the water Involved was needed to carry out the purposes <br />of the reservation, see part III A, Infra, or was for congresslonally- <br />authorized uses apart from the purposes of the reservation; see part <br />III B. <br /> <br />Third, the Act's limitation to unused, unappropriated waters means <br />that to the extent the Federal Government was usln water In connection <br />with federal land managemenT n t877, It was not free for "the appro- <br />---- <br />prlatlon and use-ot-th-e-pab-!1-c7" Bul wl,,,llier H"-pr"evtiI1led llie Ft!treral <br />Government from using addIT1Qilat-wa"ter after 1877 except In compliance <br />with state law requires further scrutiny, provided belcw. <br /> <br />Fourth, the Act's I Imitation to water for "Irrigation, mining and manu- <br />facturing purposes" has not been found by the Supreme Court to te par- <br />ticularly sIgnificant. In 1935 the Court, purportlng to give thIs <br /> <br />71 United States v. Rio Grande Irriaatlon Co., supra, 174 U.S. at 706. <br />As passed by the Senate, the prov I s I on read: "and The water I n a I I <br />lakes, rivers, and other sources of water supply shal I remain and be <br />held for the use of the public for purposes of Irrigation and mining." <br />See Congo Rec. (Feb. 27, 1877), p. 1973. The language was changed to <br />apply only to non-navigable waters In Conference, without explanation. <br />Congo Rec. (March 3, 1877), p. 2156. <br /> <br />81 Somewhat curiously, however, the Supreme Court In 1935 said these <br />two statutes were the "test and measure of private rights In and to <br />the non-navlaable waters on the publ Ie domain," California Oreaon <br />Power Co" supra, 295 U.S. at 155 (emphasis added), <br /> <br />2/ Ibid; see also CalIfornia v. UnIted States, suora, 438 U,S. at 657, <br />n. l-r:-- <br />