|
<br />OlJl1GG
<br />
<br />.,
<br />
<br />1957J
<br />
<br />THE PELTON DECISION
<br />
<br />229
<br />
<br />righL Of course, too, there was no such concept of priority of appropria-
<br />tion in the riparian system,33
<br />By contrast, the Colorado doctrine, first asserted in 1876 in the Colo-
<br />rado constitution, held, in the apt phrase of Wiel, that ''all rights in
<br />waters are held to rest upon State sovereignty and State law,"34 The
<br />reason or perhaps rationale of the rule was simply that in the arid
<br />;;Lnd semiarid regions the common-law riparian rule was unsuitable and
<br />had never existed.35 The state courts arrived at this theory without re-
<br />liance on the acts of 1866 and 1870 as constituting any base for a water
<br />right. Rather, under this theory, those acts merely recognized or con-
<br />firmed rights which had previously been exercised.
<br />In general it may be said that California looked at water rights as
<br />having originaIly been owned by the Federal government, and as having
<br />been transferred to patentees as appurtenant to their land, The Colorado
<br />doctrine viewed waters as being dedicated to public use, or rather, per-
<br />haps to the state. Wiel shows how the concept of waters as belonging
<br />to thc "negative community" like wild animals, was changed, in the
<br />Colorado-doctrine states, to the concept that they were held by the "state
<br />in trust for everyone,"36 It became settled, under this doctrine, that a
<br />water right is a usufruct, that it is not subject to grant, even by the state,
<br />and that its existence and continued recognition depends on continued
<br />use, In the words of the Federal Reclamation Act, "the right to the use
<br />of the water acquired under the provisions of this act shall be appurte-
<br />nant to the land irrigated, and beneficial use shall be the basis, the
<br />measure and the limit of the right."31
<br />What of unappropriated waters? The 1866 act was generally retro-
<br />spective and confirmatory of rights then existing and recognized under
<br />local laws and customs. What about later patentees? The Supreme
<br />Court of Oregon settled the matter by holding that such waters, by the
<br />Desert Land Act of 1877, had been dedicated to the public and were sub-
<br />ject to appropriation (where permitted under local law ). As put by Mr.
<br />Commissioner (later J lIstice) King in H oltgh v. Porter:
<br />
<br />This reservation of water rights for the benefit of the public was clearly not
<br />essential to any of the other provisions of the act. The previous statement con.
<br />tained sufficient to define and protect the rights 01 those selecting lands under
<br />
<br />33 While the details of Calilornia administration are beyond the purview of
<br />this article, it has been shown that, by the constitutional amendment 01 1928, by
<br />application of equitable doctrines of allocation, and by voluntary rotation in use
<br />01 stream flow. California has moved away from the strict application 01 the
<br />riparian doctrine to a system providing for maximum efficient use of stream flow
<br />though without a priority system. See HUTCHINS, CALIFORNIA LAW OF WATER
<br />RIGHTS 62-67, 254-56 (1956),
<br />34 WIEL, 01', cit. S1tpra note 25, at 186.
<br />:<5 Willey v. Decker, 11 Wyo. 496, 73 Pac. 210 (1903) ; Farm Investment Co.
<br />v, Carpenter, 9 Wyo. 110,61 Pac. 258 (1903).
<br />36 WIEL, 01', cit. supra note 25, at 191-92.
<br />at 32 STAT. 390 (1902),43 U.S.c. see, 372 (1952),
<br />
|