My WebLink
|
Help
|
About
|
Sign Out
Home
Browse
Search
WSP07268
CWCB
>
Water Supply Protection
>
Backfile
>
7001-8000
>
WSP07268
Metadata
Thumbnails
Annotations
Entry Properties
Last modified
1/26/2010 2:26:33 PM
Creation date
10/12/2006 2:13:29 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8402.400.10
Description
Platte River Basin-River Basin Basic Hydrology-Transmountain Diversions/Imports-Blue/South Platte
Basin
South Platte
Water Division
1
Date
4/1/1957
Author
James Munro
Title
Oregon Law Review-The Pelton Decision-A New Riparianism
Water Supply Pro - Doc Type
Publication
There are no annotations on this page.
Document management portal powered by Laserfiche WebLink 9 © 1998-2015
Laserfiche.
All rights reserved.
/
32
PDF
Print
Pages to print
Enter page numbers and/or page ranges separated by commas. For example, 1,3,5-12.
After downloading, print the document using a PDF reader (e.g. Adobe Reader).
Show annotations
View images
View plain text
<br />OOllGS <br /> <br />, <br /> <br />1957] <br /> <br />THE PELTON DECISION <br /> <br />231 <br /> <br />qui red a land title only. His interest in water came to him, if at all, <br />strictly as the result of state law or custom. <br />As a necessary corollary to the recognition of the right of appropria- <br />tion and the existence of appropriative rights as dependent on state law, <br />it came to be recognized that appropriative rights were good as against <br />the United States. Granted, this statement may be more positive, in form <br />at least, than any holding of the United States Supreme Court, but that <br />court has held-and explicitly held where the issue was raised-that the <br />rights of the United States, as proprietor of public lands, carries with it <br />no inherent rights of sovereignty, such as rights to control the waters for <br />the purpose of reclamation of arid lands, It was so held in Kansas v. <br />Colorado.4o In rejecting the petition for intervention filed by the United <br />States as owner of Federal property under paragraph 2 of section 3 of <br />article IV of the Constitution, Mr, Justice Brewer said: <br /> <br />It is true it [the property clause] has been referred to in some decisions as <br />granting political and legislative control over the Territories as distinguished <br />from the States of the Union. It is unnecessary in the present case to consider <br />whether the language justifies this construction.... clearly it does not grant to <br />Congress any legislative control over the States, and must, so far as they are <br />concerned, be limited to authority over the property belonging to the United States <br />within their limits.41 <br /> <br />The court then proceeded to dispose of the "inherent sovereignty" argu- <br />ment by reference to the tenth amendment, <br />To demonstrate the pre-Pelton position of the Supreme Court, a dis- <br />cussion of representative cases is in order. At this point a cautionary <br />word should be inserted that any deep penetration into case law is ob- <br />viously beyond the scope of this effort. Yet the cases cited will be sig- <br />nificant as showing the trend in development and the variations in <br />approach, <br /> <br />(1) In 1853 a company had located a canal on public land in Califor- <br />nia for the purpose of carrying water from a stream for mining and <br />agricultural use, By the Pacific Railroad acts of 1862 and 1864 part of <br />the land was granted for railroad purposes and became, pursuant to <br />such grants, fee land of the Central Pacific Railroad Company. Plaintiff <br />acquired land from the railroad company and then claimed that the canal <br />was a nuisance which should be abated. The defense was based on rights <br />recognized by the act of 1866, but plaintiff of course insisted that, as <br />the canal had been constructed prior to that act, it could not avail to <br />justify defendant's right. The court rejected this, saying: <br /> <br />It is the established doctrine of this court that rights of miners, who had taken <br />possession of mines and worked and developed them, and the rights of persons <br />who had constructed canals and ditches to be used in mining operations and for <br /> <br />40206 V,S, 46, 89 (1907), <br />41 Id, at 89. <br />
The URL can be used to link to this page
Your browser does not support the video tag.