<br />UU1l8U
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<br />1957]
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<br />THE PELTON DECISION
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<br />243
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<br />are not susceptible of any other construction. . . "It is hard to see how a more
<br />definite intention to sever the land and water could be evinced. The terms of the
<br />statute, thus construed, Inust be read into every patent thereafter issued, with
<br />the same force as though expressly incorporated therein, with the result that the
<br />grantee will take the legal title to the land conveyed, and such title, and ollly such
<br />title, to the flowing ",,,ters thereoll as shall be fixed or acknowledged by the
<br />customs, laws, and judicial decisions of the state of their location, If it be con-
<br />ceded that in the absence of federal legislation the state would be powerless to
<br />affect the riparian rights of the United States or its grantees, still, the authority
<br />of Congress to vest such power in the state, and that it has done so by the legisla-
<br />tion to which we have referred, cannot be doubted.78
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<br />Extensive quotation from the Sutherland opinion demonstrates that
<br />the high court was willing in 1935, and did, formally and un~istakably,
<br />adopt the view previously so strongly intimated, the view that, under
<br />the various land laws, Congress had dedicated all waters of nonnavi-
<br />gable streams on the public doma.in (not merely the "public lands")
<br />to the public under such rights as were recognized by the states or
<br />territories.
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<br />Is THERE A RIGHT TO RECAPTURE?
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<br />To those who would say that, conceding the force of the Ca.lifornia-
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<br />Oregon decision and the land laws, Congress might nevertheless, by
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<br />reservation or otherwise, "recapture" the water rights thus dedicated,
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<br />two points should be made clear: (I) Congress has not attempted so
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<br />to do; and (2) Congress could not, in derogation of vested rights, re-
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<br />capture any waters flowing on the public domain. This last statement
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<br />requires clarification: Under the law of appropriation as recognized
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<br />in Oregon and the other sixteen western states, the rule of "first in
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<br />time, first in right" applies to an entire watercourse.79 Thus, the first
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<br />appropriator of the waters of a given stream depletes the waters of that
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<br />stream to the extent of his appropriation, less, of course, return flow
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<br />and perhaps seepage. Tn other words, by appropriating some of the
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<br />water, he reduces pro ta.Jlto the water available to any other future ap-
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<br />propriator. The next appropriator reduces the available supply to a
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<br />similar extent, and so on until the entire dependable natural flow is
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<br />appropriated, Under such circumstances, the late-comer may find little
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<br />or no water left in the stream; or, if any does remain, it may consist of
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<br />7Sld. at 162, (Emphasis added.)
<br />7'J The following states have statutes providing for the appropriation of water:
<br />Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New
<br />Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah. Wa5h-
<br />ington, Wyoming. Significantly, the states lying wholly within the arid and semi-
<br />arid belt are "pure" appropriation states; i.e., there is no recognition of riparian
<br />rights, These include: Arizona, Colorado, Idaho, Montana, Nevada, New Mexico,
<br />Utah, Wyoming" All others recognize riparian rights to a greater or less extent.
<br />See HUTCHINS, SELECTED PROBLEMS IN THE LAW OF WATER RIGHTS IN THE
<br />WEST 74-109 (1942).
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