OCTRINE OF APPROPRIATION VERSUS DOCTRINE OF on. CARL HAYDEN, RIPARIAN RIGHTS DEPARTMENT OF THE INTERIOR, House of Representatives. GENERAL LAND OFFICE, Washington, February 23, 1924. MY DEAR MR. HAYDEN: I am transmitting herewith memoandum tending to show how the "doctrine of appropriation" dislaced the "doctrine of riparian rights" in the public-land States nd carried with it State control over nonnavigable waters. Only the leading cases on the subject have been quoted, that you ay not be overburdened with a large number of citations. Even without these decisions, however, the acts of Congress cited would. ppear to be conclusive. Very respectfully, WILLIAM SPRY, Commissioner. URISDICTION OVER NONNAVIGABLE WATERS-MEMORANDA AND CITATIONS SHOWING THE REASONS FOR THE DISPLACEMENT OF THE "DOCTRINE OF RIPARIAN RIGHTS" BY THE DOCTRINE OF APPROPRIATION" IN THE PUBLIC-LAND STATES Under the common law a riparian owner on a nonnavigable stream wns in fee the stream bed to the center thereof, and consequently as a right to the use and enjoyment of the natural flow of water ver his land without material diminution in quantity or deterioraion in quality. All other riparian owners have equal rights, so that o one may divert water for any purpose so as to diminish the natural low passing to riparian owners below, nor may he pollute the water o that it will be less pure and wholesome or otherwise changed from ts natural character when it passes to the owners below. (Tyler v. Vilkinson (4 Mason, 379; 3 Kents. Com. 439 (side paying).) Such was the law of the land when the Government of the United States was founded, and is now the law in most if not all of the riginal thirteen States. Such also was the law of the land when the western and Pacific erritory was acquired. However, as upon such acquisition the Government became the ole proprietor of all the land, whether bordering upon nonnavigable treams or otherwise, the reason for the common-law doctrine of iparian rights ceased to exist, because no owner other than the Government would be harmed, no matter what use was made of the vaters. Due to the exigencies of the pioneers in this vast, almost unknown, and unexplored region, a new common law relative to nonnavigable waters, applicable only to the public land States, gradually developed. until it has now become as much a part of the law of the land as s the doctrine of riparian rights in the nonpublic land States, and has been expressly so recognized by a large number of court decr sions as well as by a number of congressional acts. Nor has it e been questioned legislatively or judicially. The inception and growth of the "doctrine of appropriation nonnavigable waters as counterdistinguished from the "doctrine f riparian rights" is very fully and conclusively traced from its incep tion to full establishment and recognition in the following Un States Supreme Court cases: Atchison v. Peterson (87 U. S. (20 W 507); Basey v. Gallagher (87 U. S. (20 Wall.) 670): Jennison r. K (98 U. S. 453); Broder v. Natoma Water Co. (101 U. S. 274); Str v. Beck (133 U. S. 541); U. S. v. Rio Grande (174 U. S. 690); Gutierr v. Albuquerque Land Co. (188 U. S. 545); and Kansas r. Colorad (27 Sup. Ct. Rep. 655). Each opinion is a masterpiece of logic, and each has remaine undisputed and uncontradicted since. An epitome of these decisions may be given as follows: With regar 'to the use of nonnavigable waters for mining purposes, the comm law doctrine of riparian rights was found to be inadequate, and fact impossible, almost immediately after the cession of the "Sie country" by Mexico in 1848. Gold was discovered in California. In an incredibly short t the population grew from a few thousand to hundreds of thousa The right of mining location at once took precedence of all o forms of acquiring public land. Without adequate laws to take of the situation or officers to enforce such laws as there were, mit "2 centers or districts were organized overnight wherever a stra was reported; mining rules and regulations were enacted in p public meeting. In the beginning these rules or local laws were as diversified as th number of camps, but later models were found, which were follow as a general rule. It at once became apparent that a discovery of gold was of use without water to wash it out, and water became almost as vai able as the gold itself. The miner's inch was evolved as a measurement for water. first it represented a different amount of water in many districts, b finally was unitized and later defined by legislative act. The d trine of "first in use, first in right" was established, which, in m fied form, is still the law. Later State and Territorial laws were enacted, providing for p ing of notices of water appropriation at the point of diversion, a the recording of such notice. As the gold fever abated somewhat, unsuccessful prospectors others turned their attention to agriculture, and the arid West fo that without irrigation they would be in worse case even than miner without his sluice, and the right to waters, properly a priated and put to beneficial use, was generally recognized as a erty right, as fully for all intents and purposes and the miner's The terms "acre-foot" and "second-foot" were employed generally accepted as units of measurement for agricultural ap priation. One of the earliest judicial interpretations of the new common law to the right to use water was rendered by the Supreme Court of alifornia in 1855, in the case of Tartar v. The Spring Creek Water & g. Co. (5 Calif. 397), in which the court held: The current decisions of this court go to establish that the policy of this State, derived from her legislation, is to permit settlers in all capacities to occupy e public lands and by such occupation to acquire the right of undisputed enyment against all the world but the true owner. In evidence of this, acts have en passed to protect the possession of agricultural lands acquired by mere cupancy; to license miners; to provide for the recovery of mining claims; cognizing canals and ditches which were known to divert the water of streams In their natural channels for mining purposes; and others of like character. In the case of Basey v. Gallagher (20 Wall. 670, p. 683) Mr. Jusce Field, in adverting the above decision, says: Ever since that decision it has been held generally throughout the Pacific cates and Territories that the right to water by prior appropriation for any eneficial purpose is entitled to protection. The first legislation of Congress affecting the question of the apropriations and use of nonnavigable waters is contained in section of the act of July 26, 1866 (14 Stat. 266). That section is embodied à section 2339 of the United States Revised Statutes and reads: That whenever, by priority of possession, rights to the use of water for mining, gricultural, manufacturing, or other purposes, have vested and accrued, and the me are recognized and acknowledged by the local customs, laws and the de sion of courts, the possessors and owners of such vested rights, ahall be main ined and protected in the same; and the right of way for the construction of itches and canals, for the purposes aforesaid, is hereby acknowledged and conrmed. Careful reading of this section shows that it was not so much ntended to grant anything as to recognize the existence, operation, nd validity of the local laws on the subject. It operated retropectively as well as prospectively, and so far as the States and Territories were concerned it was merely declaratory, its only legal ffect being to confirm in them the power over their nonnavigable waters which they had for years been exercising. Mr. Justice Muller, referring to section 2339, Revised Statutes, in the case of Brider v. Water Co. (101 U. S. 274-276), says: This * * * was rather a voluntary recognition of a preexisting right of ossession constituting a valid claim to its continued use than the establishing f a new one. (Quoted with approval in Sturr v. Beck, supra.) Other congressional acts which specifically recognize the "docrine of appropriation" with reference to nonnavigable waters, as vell as the State's jurisdiction over the same, are as follows: The desert land act of March 3, 1877 (19 Stat. 377), contains this >rovision: Provided, however, That the right to the use of water by the person so conlucting the same on or to any tract of desert land of six hundred and forty cres shall depend upon bona fide prior appropriation; and such right shall ot exceed the amount of water actually appropriated and necessarily used for he purpose of irrigation and reclamation; and all surplus water over and above uch actual appropriation and use, together with the water of all lakes, rivers, nd other sources of water supply upon the public lands and not navigable, hall remain and be held free for the appropriation and use of the public for rrigation and mining and manufacturing purposes, subject to existing rights. Section 18 of the act of March 3, 1891 (26 Stat. 1095), granting rights of way for reservoirs, canals, ditches, etc., for the main purp of irrigation, has a clause reading: And the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States and Territories. The eighth section of the act of June 17, 1902 (32 Stat. 385), monly known as the reclamation act, reads: SEC. 8. That nothing in this act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any State or Territory relating! the control, appropriation, use, or distribution of water used in irrigation, or ar vested right acquired thereunder, and the Secretary of the Interior, in carrying on the provisions of this act, shall proceed in conformity with such laws, and thr herein shall in any way affect any right of any State, or of the Federal Gover ment, or of any landowner, appropriator, or user of water in, to, or from 25 interstate stream or the waters thereof: Provided, That the right to the use of the water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit right. While it is probably true that the United States acquired the r to the water as well as the land comprising the public domain. fr the very beginning, Congress, at first, tacitly, and later by legislati waived its rights of governmental control, leaving the rights to the s of water to be settled by local customs and laws, and at the same t waived its rights as riparian proprietor and consented that it and its grantees should hold subject to local rules and laws governing the of water. This has been recognized by every act of Congress on subject and by every decision of the Supreme Court in cases whớ the question has arisen. FEDERAL OWNERSHIP OF PUBLIC LANDS IN ARIZONA [on. CARL HAYDEN, M. C., OFFICE OF THE SOLICITOR, Phoenix, Ariz. MY DEAR MR. HAYDEN. I inclose herewith copy of the opinion f Ottamar Hamele on the public land matter, and also a letter of y own on the same subject. Yours very truly, S. B. DAVIS. femorandum by chief counsel, Reclamation Service, concerning reservations and restrictions in favor of the Government, relative to public lands in the State of Arizona. JUNE 12, 1923. 1. Reference is made to letter of May 14, 1923, from Hon. Carl layden to you upon the above-entitled subject. 2. I have read Representative Hayden's speech of January 11, 1916, pon this subject, as published in the Congressional Record. He akes an admirable and complete presentation of the matter, and I el I can hardly add anything of value to it. 3. The State of Arizona was admitted into the Union with various servations and restrictions in favor of the United States respecting e public domain. These reservations and restrictions are not eculiar to the State of Arizona but are found in the enabling acts f many other States. The provisions of an enabling act and a onstitution made pursuant thereto make a compact between the nited States and a State. These limitations relate to property and ot to the political rights or obligations of the people. An agreement reference to property involves no question of equality of political catus and is valid. (Stearns v. Minnesota, 179 U. S. 223.) 4. Admission on an equal footing with the original States in all espects whatsoever is met if there is an equality of constitutional ght and power. (Boyd v. Nebraska, 143 U. S. 135.) 5. Congress has full power to dispose of the public lands and roperty of the United States and to place such reservations and estrictions thereon as it may consider desirable. The following are few of many cases bearing upon this right: Van Brocklin v. Tennessee (117 U. S. 151). Hallowell v. United States (221 U. S. 324). Utah Power, etc., Co. v. United States (230 Fed. 336). Pollard v. Hagan (3 How. 212). Illinois Central Railroad Co. v. Illinois (146 U. S. 434). |