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I OOllll? I I :1 'I ., i ., 230 OREGON LAW REVIEW . [Vo\.J6 the desert land act; but the added proviso, or something of similar import, was essential to the establishment of a clear and uniform rule upon the subject as regards all appropriations thereafter to be made from streams or other bodies of water upon the public lands, , ' The words "shall remain and be held free for the appropriation and use of the public for irrigation." etc., are clearly words of reservation and dedication, and obviously so intended.3s . As will be seen, these views received, in due course, the brief but approv- ing dictum of a Holmes and still later the measured and well-wrought approbation of a SutherJand,39 It must be realized that the Federal legislation is to be considered in the context of government policy towards the settlement of the west- ern states and territories, Historical citation is abundant to show that the purpose of the homestead and related legislation was not merely to provide a means whereby land could be settled and patented to the pioneer. Concern was everywhere evident that permanent communities should be set up. \Vater was not merely important, It was the sine qua non for western development-then as now, Thus, the Federal govern- ment, by permitting or perhaps stimulating a system of prior appropria- tion, was helping to establish conditions under which the maximum use of the public lands for settlement would be made, Adherence to the riparian system would encourage waste on the one hand and monopoly on the other (waste of waters which the riparian owners insisted should flow past their properties regardless of use or nonuse, and monopoly of streams and their rescources by one or a few landowners) and thus frustrate the homestead plan of settlement on 160-acre tracts. In pursuing the policy contained in the acts of 1866 and 1870 and the Desert Land Act of 1877, Congress had apparently not been concerned with the fact that under that policy the property rights of patentees of public land were vitally affected by the laws of the several states and territories. Thus, the patentee in California would receive, under Cali- fornia law, recognition of a riparian right in the waters of a stream flowing through or by his property, The patentee in Wyoming received no such right and, moreover, if the Wyoming patentee failed to appro- priate waters of a regular stream flowing on his place, he stood to lose those waters to some other appropriator upstream or downstream. Such a loss could bar him from use of the waters to any extent except for domestic purposes; that is, for humans and animals. Thus, it could be said that the property right acquired by patent from the United States varied in accordance with the local law ; or, perhaps more accurately, the Federal government, by the various enactments, had effected or recog- nized a severance of the waters from the lands so that the patentee ac- . 3851 Or. 318, 386-87, 95 Pac, 732.. 98 Pac, 1083, 1091 (1909). 3~ Eoquillas Land and Cattle Co. v. Curtis. 213 US, 338 (1909) ; California Oregon Power Co, y. Beaver Portland Cement Co.. 295 U.S. 142 (1935).