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<br />OREGON LAW REVIEW
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<br />purposes of agricultural irrigation, in the region where such artificial use of the
<br />water was an absolute necessity, are rights which the government had, by its
<br />conduct, recognized and encouraged and was bound to protect, before the passage
<br />of the act of 1866. Weare of opinion that, , ' the act. . ,was rather a voluntary
<br />recognition of a pre-existing right of possession, constituting a valid claim to its
<br />continued use, than the establishment of a new one. . ,42
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<br />(2) Pursuant to a territorial law, the Albuquerque Land & Irrigation
<br />Company was chartered to build dams, reservoirs, canals, and other
<br />works to provide irrigation water for the purpose of "colonization and
<br />improvement of land in connection therewith," The corporation sought
<br />by injunction to halt interference by defendants in canal surveys, De-
<br />fendants, asserted the territorial act invalid in that it assumed to dis-
<br />pose of property of the United States, To support this argument, it was
<br />contended that the waters "affected by the statute are public waters, the
<br />property not of the Territory or of private individuals, but of the United
<br />States,"43 The statute, according to the argument urged on the Supreme
<br />Court, permitted corporations "for their mere pecuniary profit , , , to
<br />acquire the unappropriated portion of such public waters, in violation
<br />of the right of the United States to control and dispose of its own prop-
<br />erty wheresoever situated,"" Mr, Justice White said (in Gutierres v,
<br />Albttqtterqtle Land & Irrigation Co,) :
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<br />, . ,the objection is devoid of merit, As stated [in Uniled Slales v. Rio Grande
<br />Dam m,d Irrigation Co" 174 U,S, 690, 704-06 (1899)] '" Congress recognized,
<br />as respects the public domain, "so far as the United States are concerned, the
<br />validity of the local customs, laws and decisions of courts in respect to the appro-
<br />priation of water," By the act of March 3, 1877"" the right to appropriate such
<br />an amount of water as might be necessarily used for the purpose of irrigation and
<br />reclamation of desert land, part of the public domain, was granted, and it was
<br />further provided that "all surplus water over and above such actual appropriation
<br />and use, together with the water of an lakes, rivers and other sources of water
<br />supply upon the public lands and not navigable, shall remain and be held free for
<br />the appropriation and use of the' public for irrigation, mining and manufacturing
<br />purposes subject to existing rights."45
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<br />What restraint, if any, is placed on these rights to appropriate for the
<br />uses mentioned? Quoting with approval a dictum in the Rio Grande
<br />case, Mr. Justice White noted:
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<br />It would necessarily seem to follow from the legislation referred to that the
<br />statute which we have been considering is not inconsistent with the legislation of
<br />Congress on the subject of the disposal of waters flowing over the public domain
<br />of the United States, Of course, as held in.the Rio Gra"de case, (p, 703), even a
<br />State. as respects streams within its borders, in the abse"~ce of specific authori(v
<br />from Congress, "cannot by its legislation destroy the right of the United States, as
<br />the owner of lands bordering on a stream, to the continued Row of its waters; so far
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<br />42 Broder v.' Natrona Water Co.. 101 U,S. 274, 276 (1879),
<br />43188 U.S. 545,552 (1903),
<br />HIbid,
<br />45 I d. at 553.
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