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<br />1957]
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<br />227
<br />
<br />THE PELTON DECISION
<br />
<br />potential of the region for agriculture attracted increasing numbers of
<br />immigrants.
<br />Years of agitation by "free soilers" culminated, finally, in the first
<br />Homestead Act of 1862.26 Thereafter Congress became increasingly
<br />concerned with the disposal of the public domain, The handling of the
<br />water problem was of utmost importance, since, then as now, the avail-
<br />ability of water was vital to the economy, And, by availability, one has
<br />reference to the securing of water from streams and lakes and the im-
<br />pounding of water so that it could be useful and usable for the irrigation
<br />of lands, The regions involved (those west of the 98th meridian) were
<br />largely arid or semiarid, In most of the area, the annual rainfall was
<br />less than' 2S inches and cropping was, and is, impossible without irri-
<br />gation .21
<br />Under such circumstances, the Federal government could have sum-
<br />marily ruled that the miners and agriculturists who had appropriated
<br />waters of streams had acquired no prescriptive rights against the United
<br />States, On the contrary, Congress decided to recognize the local cus-
<br />toms and rules and did so in the Act of July 26, 1866,28 Let it be said
<br />and emphasized that there is no question as to the right of the United
<br />States, at that time, to have recaptured the mining claims, without com-
<br />pensation to the miners, and to have sold them to the highest bidder.
<br />Indeed, such a proposal was made by the Secretary of the Treasury.
<br />The proposal was to take back the mines, sell them, and retain the
<br />royalties for the government. By so doing, it was claimed, substantial
<br />revenues would be realized, And substantial revenues were then needed
<br />to payoff the war debt following the Civil War so recently concluded,29
<br />The water-rights provisions of the 1866 act follow:
<br />
<br />Whenever, by priority of possession, rights to .the use of water for mining, agri-
<br />cultural, manufacturing or other purposes, have vested and accrued, and the same
<br />are recognized and acknowledged by the local customs, laws and the decisions
<br />of courts, the possessors and owners of such vested rights shall be maintained and
<br />protecteu in the same; and the right of way for the construction of ditches and
<br />canals for the purposes herein specified is acknowledged and confirmeu: but
<br />whenever any person, in the construction of any ditch or canal, injures or damages
<br />
<br />26 Act of May 29, 1862, 12 STAT. 392,
<br />2i In the western states land having an adequate water supply is worth gen-
<br />erally many times more than "dry" land. This is a fact of primary importance in
<br />any evaluation of the economy and social structure' of the region, As one au-
<br />thority puts it: ",. ,no conquest was possible by the old individual pioneer method,
<br />. . . expensive irrigation works must be constructed, cooperative activity was
<br />demanded ill the utilization of water supply, and capital beyond the reach of the
<br />farmer was required," TURNER, THE FRONTIER IN AMERICAN HISTORY 258 (1921).
<br />For a recent study of the matter of resource administration and its impact on
<br />social forms, see Ostrom, The Social Scie>ttist and the Control and Development
<br />of Natural Resources, 29 LA"D ECONOMICS 105 (1953),
<br />2814 STAT. 253 (1866),43 U,S,C. sec. 661 (1952). See note 30 ;>tfra.
<br />291 WIEL, op, cit, supra note 25 at 15-107.
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