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<br />UU1l8U <br /> <br />1957] <br /> <br />THE PELTON DECISION <br /> <br />243 <br /> <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 <br /> <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. <br /> <br />Is THERE A RIGHT TO RECAPTURE? <br /> <br />To those who would say that, conceding the force of the Ca.lifornia- <br /> <br />Oregon decision and the land laws, Congress might nevertheless, by <br /> <br />reservation or otherwise, "recapture" the water rights thus dedicated, <br /> <br />two points should be made clear: (I) Congress has not attempted so <br /> <br />to do; and (2) Congress could not, in derogation of vested rights, re- <br /> <br />capture any waters flowing on the public domain. This last statement <br /> <br />requires clarification: Under the law of appropriation as recognized <br /> <br />in Oregon and the other sixteen western states, the rule of "first in <br /> <br />time, first in right" applies to an entire watercourse.79 Thus, the first <br /> <br />appropriator of the waters of a given stream depletes the waters of that <br /> <br />stream to the extent of his appropriation, less, of course, return flow <br /> <br />and perhaps seepage. Tn other words, by appropriating some of the <br /> <br />water, he reduces pro ta.Jlto the water available to any other future ap- <br /> <br />propriator. The next appropriator reduces the available supply to a <br /> <br />similar extent, and so on until the entire dependable natural flow is <br /> <br />appropriated, Under such circumstances, the late-comer may find little <br /> <br />or no water left in the stream; or, if any does remain, it may consist of <br /> <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). <br />