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001163 226 OREGON LAW REVIEW . [Vol. 36 sovereign powers over its own lands which are no longer open for settlement nnder the homestead laws?' LEGISLATIVE AND JUDICIAL BACKGROUND The decision is silent on the history of Federal laws respecting the acquisition of water rights in the western part of the United States, And yet without an appreciation of that history it is not readily apparent how specious is the court's reasoning. In the historical context, "reserved lands" have only rarely been spoken of as being subject to any basic principles different from those applicable to public lands in general. That history must necessarily begin with the use of the waters of flow- ing streams by the early miners in California, These hardy souls di- verted the waters of such streams to assist in extracting the minerals which they so feverishly sought. Such a use could lead to endless con- flicts unless some rule of thumb were applied-and it was applied in the form of the rule of appropriation, which simply recognized the "first in time" as the "first in right." Thus, if one hundred miners were using, or attempting to use, the waters of one creek, precedence would start with the first man who diverted any water, his right being su- perior to that of the second man, and the latter's superior to that of the third, If, in this process, the entire stream were diverted, then the sub- sequent locators would be without water, and, under the custom, they would have no right to complain, While it is suspected that from ancient times some system of appro- priation has been employed where limited water was available for agri- culture, it appears fairly clear that in the United States the customs of the California miners provided the immediate stimulus for application and eventual general adoption of the doctrine,25 It is important, too, that the right was always a possessory one and that the ownership of real property was not necessary to support it. This had to be the case, obviously, since the miners were eXploiting the resources of the public lands of the United States. They were squatters, of course, both as to land and water, but their activity, as anyone familiar with the history of the times must recall, was the main stimulus for the tremendous mi- gnition to California, beginning in 1849. Later, of course, the great " ! ~ 24 Query: Since the remaining pubIic domain has been withdrawn from entry, are there any instances under the Federal Power Act requiring compliance with state law? The rationale of the First Iowa decision has been applied in two cases involv- ing licenses for the highly controversial (fish v, navigation) Cowlitz River dams projected by the city of Tacoma. Tacoma v. Taxpayers of Tacoma, 43 Wash, 2d 468, 262 P.2d 214 (1953) ; State of Washington Dep't of Game v, Federal Power Comm'n, 207 F.2d 391 (9th Cir, 1953). ='5 See I KINNEY, IRRIGATION AND WATER RIGHTS 1005 et seq, (3d ed. 1911) and I WIEL, WATER RIGHTS IN THE WESTERN STATES sec. 66 et seq. (3d ed, 1911) for discussion of the historical background,