WSP07268

• 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: Publication

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OREGON LAW REVIEW

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the possession of allY settler on the public domain, the party committing such
injury or damage shall be liable to the party injured for such injury or damage,

In 1870, Congress enacted a law providing that all patents issued under
the homestead or pre-emption laws would be subject "to any vested
and accrued water rights, or rights to ditches and reservoirs used in
connection with such water rights" that may have been acquired under
the 1866 law.30 The third in the line of important Congressional ex-
pressions was contained in the Desert Land Act of 1877, While dealing
primarily with its purpose of establishing a system of desert-land entries
whereby locators on public lands could perfect the right to patent by
the application of water to snch land, the act contained this general pro-
vision with respect to waters on public lands (following the provisions
for appropriating water for use on desert-land entries) :

.~

.,

. . . and all surplus water over and above such actual appropriation and use,
together with the water of all lakes. rivers, and other sources of water supply
upon the public lands and not navigable, shall remain and be held free for the ap-
propriation and use of the public for irrigation, mining, and manufacturing pur-
poses subject to existing rights.S1

In interpreting these three acts, two theories emerged over the years,
The earlier, which came to be known as the "California doctrine," con-
ceived of the statutes, especially that of 1866, as effecting a grant of the
waters, but a grant that was effective only as of the time of the patent.
Thus it was recognized that a patent of lands by the government car-
ried with it the right to use flowing waters under the riparian doctrine.
A subsequent appropriator of waters from a given stream held his
rights subject to the riparian rights of a prior grantee, regardless of an)'
use made by such prior riparian grantee; that is, the complete right to
the continuolls fJow-ut cJtrrere solebat-was a perquisite acquired

by force of the grant itself, and no user by the grantee was necessary to
fortify his right to the use of the waters. This was the result as first
established in the landmark case of Lux v. Haggin,32 The effect was to

set up two principles completely antithetical to the system adopted in
other western states: (1) the principle that rights to use water were
based on the location of the land; and (2) the principle that user is not a

sine ijua non of the inception and the continued enjoyment of a water

30 Act of July 9, 1870, 16 STAT. 218. The parts of the acts of 1866 and 1870
pertaining to the use of waters and the wording. of patents, were later incorporated
into the REVISED STATUTES as sections 2339 and 2340 respectively. These sections
"...ere combined in the UNiTED STATES CODE and are now included ill one section.
43 U.s.e. see, 661 (1952).
3119 STAT, 377 (1877),43 U.s.e. see. 321 (1952).
n 69 Cal. 255, 10 Pac. 674 (1886). See WIEL, op cif. s1Ipra 1I0te 25, at 182. For
background on the controversy in Lux v, Haggi.., see Wiel, Filty Years of Water
Law. SO I-L\Rv. L. REV, 252 (1936),