riparian rights in respect to waters on its own lands, notwithstanding state laws to the contrary.27

In view of the fact that the right of appropriation is now thoroughly established, though in some states the right is limited to water on the public lands, the question as to what is the foundation of the right is of little practical importance, and the discussion thereof is largely academic.

§ 75. Power of State to Authorize Appropriation.

Closely connected with the question whether the right of the appropriator is derived from the state as law maker or from the United States as riparian proprietor, is the further question as to the power of the state to authorize the appropriation of water for irrigation and other purposes. The consideration of one of these questions involves more or less the consideraering the opinion of the court (p. 384): 'In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.'" Whitaker v. McBride, 197 U. S. 510. This passage from Hardin v. Jordan is quoted also in City of Los Angeles v. Los Angeles Farming & Milling Co., 152 Cal. 645, 93 Pac. 869, 1135, in which the determination of riparian rights is made to depend upon local law.

See, also, Bernot v. Morrison, 81 Wash. 538, 143 Pac. 104. "In Winters v. United States, 207 U. S. 564, 28 Sup. Ct. 207, which was a suit by the United States to restrain the interference with the flow of water to an Indian reservation, the court said: "The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be." The fact that the land in question was an Indian reservation may have influenced the court, but it would seem that the same rule would hold as to any of the public lands.

In Hough v. Porter, 51 Ore. 318, 38 Pac. 1083, King, C., said: "The right of the government to dispose of its public lands, and to deal with all rights incident thereto, in such a manner as it may deem best, has long been fully established and recognized by all decisions upon the subject. True it cannot by legislation determine for any state, after its admission, what the local laws relative to riparian rights shall be (United States v. Rio Grande Irr. Co., 174 U. S. 690, 703, 19 Sup. Ct. 770, 43 L. Ed. 1136); but the general government, in dealing with its public lands, may make such reservations therefrom, by grant, dedication, or otherwise as it may see fit."

tion of the other. The question as to the power of the state to authorize appropriation presents two distinct though related phases: first, the power of the state as against the United States to authorize the appropriation of water on the public domain, this being practically the same question as the one just considered; and, second, the constitutionality of the state appropriation laws as against a private individual as riparian proprietor.

§ 76. Appropriation Upon the Public Domain of the United States.

Upon the first phase of the question, namely, the power of the state to authorize the appropriation of water upon the public domain, there is very little direct authority. In a leading case in the supreme court arising in the territory of New Mexico,28 Mr Justice Brewer states the law as follows:

"The unquestioned rule of the common-law was that every riparian owner was entitled to the continued natural flow of the stream. * * * While this is undoubted, and the rule obtains in those states in the Union which have simply adopted the common-law, it is also true that as to every stream within its domain a state may change this common-law rule and permit the appropriation of the flowing waters for such purposes as it deems wise. Whether this power to change the commonlaw rule and permit any specific and separate appropriation of the waters of a stream belongs also to the legislature of a territory, we do not deem it necessary for the purpose of this case to inquire. We concede arguendo that it does. Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: First, that in the abscence of specific authority from Congress a state cannot by its legislation destroy the right of the United States, as the

28 United States v. Rio Grande Irrigation Co., 174 U. S. 690, 19 Sup. Ct. 770.

owner of lands bordering on a stream, to the continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government property. Second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. * * * Notwithstanding the unquestioned rule of the common-law in reference to the right of a lower riparian proprietor to insist upon the continuous flow of the stream as is was, and although there has been in all of the Western states an adoption or recognition of the common-law, it was early developed in their history that the mining industry in certain states, the reclamation of arid lands in others, compelled a departure from the common-law rule, and justified an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those states, by custom and by state legislation, a different rule-a rule which permits, under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes. So far as those rules have only a local significance, and affect only questions between citizens of the state, nothing is presented which calls for any consideration by the federal courts. In 1866 Congress passed the act of July 26, 1866 [Rev. Stat. § 2339]. March 3, 1877, an act, c. 107, was passed for the sale of desert lands [recognizing the right of appropriation]. On March 3, 1891, an act, c. 561, an act was passed [granting a right of way through the public lands and reservations to canal or ditch companies]. Obviously by these acts, so far as they extended, Congress recognized and assented to the appropriation of water in contravention of the common-law rule as to continuous flow."

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The precise question before the court related to the effect of the construction of a dam for storing and distributing the water of the Rio Grande River for irrigation and other purposes upon the navigability of the river. It will be noted that,

in effect, the court adopts the California view that the appropriator's right is based, at least indirectly, upon the theory of a grant from the United States, the United States having practically surrendered its rights as riparian proprietor to the state. The holding of this case that Congress has given is sanction to the appropriation laws of the states was affirmed in a recent case in the supreme court, in which it was also held that, by more recent legislation, Congress has also recognized the legislation of a territory in respect to the regulation of the use of public waters.20

The doctrine that, by the acts of 1866 and 1870 and similar more recent legislation, Congress has surrendered to the states the riparian rights of the United States, is supported by several state and territorial decisions.30 This doctrine seems to afford a sufficient basis for the state laws relating to appropriation on the public domain. It may be doubted, however, whether this construction of the acts of Congress is fully consistent with the earlier construction that these acts do not constitute the grant of any new right, but were rather the voluntary recognition by Congress of rights already acquired, that is acquired by the appropriator as an individual under local regulations, and not rights assumed by the state.31

"Gutierres v. Albuquerque Land, etc., Co., 188 U. S. 545, 23 Sup. Ct. 338.

30 United States v. Rio Grande Dam, etc., Co., 9 N. Mex. 299, 51 Pac. 674; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 87 Am. St. 918, 50 L. R. A. 747.

1

In Boquillas Land, etc., Co. v. Curtis, 11 Ariz. 128, 89 Pac. 504, the court held that if, as seemed to be the case, the use of the waters of innavigable streams in the territory acquired by the United States from Mexico, was under legislative control under the Mexican law, such use was under similar control, after the cession, by the United States or by its delegated authority, the territory of Arizona; and that the legislature of Arizona, under its delegated authority from the sovereignty of the United States, might determine what system of water rights should prevail in the territory. The decree in this case was affirmed by the United States Supreme Court in 213 U. S. 339.

"See the criticism of Mr. Wiel, of California, a strong advocate of the California view.

Wiel, Water Rights in the Western States, § 38.

In the case of Kansas v. Colorado32 the power of the state in its sovereign capacity to determine what doctrine of water rights shall prevail in the state was fully conceded by the Supreme Court. The two states concerned, as it happens, have taken opposite views as to which doctrine is best suited to the conditions existing within their respective territory. Colorado is the leading advocate of the extreme doctrine of appropriation, which involves the total rejection of the doctrine of riparian rights so far as irrigation is concerned, while Kansas has adopted the California doctrine of riparian rights. Without making any distinction between the use of water of streams flowing on the public domain and such use as against a private riparian owner, and without referring to the rights of the United States as riparian proprietor, or to the federal statutes relating to appropriation, Mr. Justice Brewer laid down the law as to the power of the state as follows: "It may determine for itself whether the common-law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state."

In this declaration Mr. Justice Brewer seems to take a much more advanced view of the power of the state than that expressed by him in the opinion previously quoted in this section, and which was quoted also in the opinion in Kansas v. Colorado.

Whatever may be the theory of the doctrine, it is clear that, "by the settled rule of decisions in the Supreme Court of the United States, conveyances by the United States of public lands on non-navigable streams and lakes, when it is not provided otherwise, are to be construed and have effect according to the law of the state in which the lands are situate, in so far

"Kansas v. Colorado, 206 U. S. 46.