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d 0077 under the statute to that amount "actually appropriated" and "necessarily used~ for irrigation and reclamatio~ Any excess non-navigable water was specifically saved for the public: [AlII surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. 43 U.S.C. S 321. This proviso of the Desert Land Act has been given a some- what broader reading by the Supreme Court than might be warranted by its legislative history, which suggests only that it was included to prevent any individual from mono- polizing a source of water on desert lands. 39/ In California Oregon Power Co. v. Beaver Portland Cement CO:, supra, the Supreme Court construed the Act as effecting "a severance of all waters upon the public domain, not theretofore appropriated, from the land itself," and reserving those severed waters "for the use of the public under the laws of the states and territories named." 295 U.S. at 158, 162. The Court held that a land patent granted by the federal government to a settler under the Homestead Act did not carry with it any common law riparian rights not recognized by the state, because in the Desert Land Act (if not before) Congress had acquiesced in the authority of the western states to change the common law riparian system to an appropriative system. Id. at 158. Although the question before the Court in that case involved competing private rights to water arising on federal lands, the language used by the Court to describe the effect of the Desert Land Act is quite broad, and could be interpreted to apply to rights that may be asserted by the federal government: What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect 39/ See F. Trelease, "Federal Reserved Water Rights Since PLLRC,. 54 Denver L. J. 473, 476 (1977). At the time the Act was proposed, concern was voiced that the language .conducting water. upon the desert lands might work a partial repeal of the 1866 and 1870 Acts, and would permit a settler to monopolize available water by conducting it across his land and selling (Continued) - 21 -