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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
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<br />I,. <br />U "- ~ .'... <br /> <br />.J <br /> <br />242 <br /> <br />OREGON LAW REVIEW <br /> <br />[Vol. 36 <br /> <br />to the waters on the public domain. Hough ,/!, Porter was mentioned and <br />affirmed without reservation in this connection," The words of M r. <br />Justice Sutherland are of more than passing significance. Speaking of <br />the acts of 1866 and 1870, he said: <br /> <br />The effect of these acts is not limited to rights acquired before 1866, They <br />reach into the future as well, and ~pprove and confirm the policy of appropriation <br />for a beneficial use, as recognized by local rules and customs, and the legislation <br />and judicial decisions of the arid-land states, as the test and measure of private <br />rights in and to the non-navigable waters on the public domain.75 <br /> <br />, <br /> <br />If the acts of 1866 and 1870, the court continued, "did not constitute an <br />entire abandonment of the common-law rule of running waters in so far <br />as the public lands and subsequent grantees thereof were concerned, <br />they foreshadowed the more positive declarations of the Desert Land <br />Act of 1877."76 Reviewing the history of land legislation in the West <br />and stressing the aridity of the conditions prevailing and the decisive <br />importance of water in building the economy, the court then said: <br /> <br />In the light of the foregoing considerations, the Desert Land Act was passed, <br />and in their light it must now be construed. By its terms, not only all snrplus water <br />over and above such as might be appropriated and used by the desert-land entry- <br />men, but "the water of all lakes, rivers and other sources of water supply upon <br />the public lands and not navigable" were to remain "free for the appropriation <br />and use of the public for irrigation, mining and manufacturing purposes." If this <br />langtlage is to be given its natural meaning, and we' see no reason why it should <br />not, it effected a severance of all waters upon the public domain, not theretofore <br />appropriated. from the land itself. From that premise, it follows that a patent <br />issued thereafter for lands in a desert-land state or territory, under any of the <br />land laws of the United States, carried with it, of its own force, no common law <br />right to the water flowing through or bordering upon the lands conveyed.77 <br /> <br />The court then discusses Hough v. Porter and the vVashington, Cali- <br />fornia, and South Dakota cases cited supra. In approving Hough v. <br />Porter, Justice Sutherland makes it clear that the intention of Congress <br />was to recognize the controlling rule of appropriation as applicable <br />under the 1877 act to all types of entry under the various western land <br />laws, The government had the power, as owner of the public domain. <br />to dispose of the land and water separately or together, the comt said. <br />adding: <br /> <br />The fair construction of the provision now under re\'iew is that Congress in- <br />tended to establish the rule that for the future the land should be patented sep- <br />arately; and that all non-navigable waters thereon should be reserved for the <br />use of the public under the laws of the states and territories named. The words <br />that the water of all sources of water supply upon the public lands and not navig- <br />able "shall remain and be held free for the appropriation and LIse of the public" <br /> <br />74 295 V,S. at 161-63. <br />751d. at 155. <br />7fi Ibid. <br />77 ld. at 158. <br />
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