as an Invasion of Riparian Rights
"Absolute Territorial Sovereignty"
In Lux v. Haggin, 69 Calif. 225, 255, 338-339, 417-419, 4 Pac. 919, 1984; 10 Pac. 674, (1886) held, on a principle called "absolute territorial sovereignty." This assumed that the "owner" of the public domain was the U.S. (for the purposes of disposal.) As such, it could control the distribution of unappropriated waters on public land, even if this abrogated unvested riparian rights to those lands. It was only until after public land was disposed of that riparian rights inhered.
The court stated:
"It has often been held by the court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. It has never been held that the right to appropriate waters on the public lands of the United States was derived directly from the State of California as the owner of innavigable streams and their beds. And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully applied in the public lands of the United States, such rights have always been claimed to be deranged by private persons under the act of Congress, from the recognition accorded by the act, or from the acquiescence of the general government in previous appropriations made with its presumed sanction and approval."
Appropriation as an Invasion of the Riparian Title
In Duckworth v. Watsonville Water & Light Co., (150 Calif. 520, 525, 528-529, 531 89 Pac. 338 (1907), the court held that the United States formally consented to the acquirement of appropriative rights on the public domain in the acts of 1866, 1870, and 1877 and thereby waived its right to object to the impairment of the rights of its public lands in the use of the nonnavigable streams flowing through them. So long as the lands remained in Government ownership, riparian rights would not be asserted against intending appropriators. (See also 1922 San Joaquin & Kings River Canal & Irr. Co. v. Worswick, (1922).
In Duckworth v. Watsonville Water & Light Co., 170 Calif. 425, 432, 150 Pac. 58 (1915) It was the opinion of the court that the diversion of water on public lands, if recognized by local laws, conferred upon the diverter the riparian rights in the stream pertaining to the United States contiguous thereto, on the theory that the United States by the Act of 1866 granted a part of the property in its lands to such diverter.
In 1921 Holmes v. Nay, 186 Calif. 231, 234-235, 199 Pac. 325, the court interpreted the Act of 1866 as validating appropriations made on public lands as constituted an invasion of the title held by the United States in riparian lands.