Page:The Green Bag (1889–1914), Volume 17.pdf/621

 592

THE GREEN BAG

While these lands were owned by the United States there was no necessity for the application of the common law regard ing riparian ownership and rights,1 but, on the contrary, the United States government was free to adopt any policy about water rights which it saw fit. It naturally adopted the policy which the necessity of the case demanded. First, through the executive department of the government, and then by the Act of July 26, 1860,2 the United States recognized the appropriation of water doctrine and protected water-rights ac quired under it.3 By a number of subsequent acts, including the Desert Land Act of March 3, 1877,' and the Reclamation Act of June 17, iQ02,5 the United States continued to recognize the appropriation of water doctrine as the one applicable to the arid region. While it is true that Kansas was ad mitted into the Union in 1861, and there fore, prior to the act of 1866, Colorado was 1 It is often said that the federal govern ment, as such, has no common law. By statute, however, the United States from time to time, adopts common law rules, and it seems settled that as to interstate and other transactions where federal questions are involved, the prin ciples of the common law arc operative, except so far as they are modified by congressional enact ment. Western Union Telegraph Co. v. Call Pub. Co., 181 U. S. 92, at pages 100 to 103. We shall see, however, that the common law regarding riparian ownership and rights never prevailed in the arid region. 2 Now Section 2339 of the United States Hevised Statutes. 3 "It is the established doctrine of this court that rights of miners who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the re gion where such artificial use of water was an absolute necessity, are rights which the government had by its conduct recognized and encouraged, and was bound to protect before the passage of the Act of 1866." Brodera. Water Co., 101 U. S. 274, at page 276. 4 19 United States Statutes at Large, 377. 5 32 United States Statutes at Large, Part i, page 388.

not admitted until after that act, and it would never be held that by admitting Kan sas into the Union the United States gave up any right to adopt or legalize the appro priation of water doctrine in the territory now known as the state of Colorado. Be sides the United States Supreme Court has said that the Act of 1866 "was rather a voluntary recognition of a preexisting right of possession constituting a valid claim to its continued use, than the establishment of a new one," 1 and that preexisting right undoubtedly antedated the admission of Kansas into the Union.2 After the United States has so persistently countenanced the appropriation of water doctrine, and, indeed. has actually made most of its sales of land in the arid region because that doctrine ex isted and was recognized by it, and particu larly after the United States Supreme Court has itself enforced the doctrine,' and has also affirmed the right of the several states to adopt the doctrine/ there would 1 Broder v. Water Co., 101 U. S. 274, at page 276, citing: Atchison v. Peterson, 20 Wall. 507. Basey v. Gallagher, 20 Wall. 670. Forbes f. Gracey, 94 U. S. 762. Jennison v. Kirk, 98 U. S. 4531 See Coffin et al. v. Let Hand Ditch Co., 6 Colo., 433, at pages 446-4 7. 3 See cases in Note 14. 4 United States v. Rio Grande, etc., Co., 174 U. S. 690, at pages 702—3. There the right of a state to adopt the appropriation of water doctrine is stated to be subject to the two exceptions: (i) that it cannot thereby destroy the right of th? United States as a riparian claimant, and (2) that it cannot thereby interrupt the navigability of streams. As to the second exception, it should be borne in mind that the petition in intervention of the United States in the Kansas-Colorado water-suit, sets up that the Arkansas River is navigable in Arkansas and in Indian Territory, though that question may never be material A third exception to the right of a state to adopt the appropriation of water doctrine has apparently been established by the decision on demurrer in the Kansas-Colorado suit itself, viz: That by adopting the appropriation of water doctrine a state may not deprive a state lower down the stream from all use of the water. Kansas v. Colorado, 185 U. S. 125.