Appropriative Water Use Rights
ADVENT OF THE APPROPRIATIVE RIGHT
In the early years of California, the federal government did little in regard to the issue of public domain lands and their disposal. As the use of water was necessary to develop mineral deposits, mining districts developed local systems to recognize claims to water use. These "appropriative" rights were acquired simply by physically controlling and beneficially using water under posted claim. As Charles W. McCurdy explained, in Stephen J. Field and Public Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth Century America, (pg. 236):
"Following a tradition of collective action on the mining frontiers of other continents, the miner formed districts, embracing from one to several of the existing 'camps" or 'diggings' and promulgated regulations of marking and recording claims. The miners universally adopted the priority principle, which simply recognized the superior claims of the first arrival. But the...miner's codes defined the maximum size of claims, set limits on the number of claims a single individual might work, and established regulations designating certain actions - long absence, lack of diligence, and the like - as equivalent to the forfeiture of rights. A similar body of district rules regulates the use of water flowing on the public domain."
According to Wells A. Hutchins in Water Rights Laws in the Nineteen Western States, (pg. 161):
"This development and the resulting mining industry had a profound influence upon the political and economic growth of California and on the development of water law throughout the West. As water was required in much of the gold mining process, rights to the use of the water were of fundamental importance. This mineral area was Mexican territory when gold was discovered but was ceded to the United States less than 6 months later by the Treaty of Guadalupe Hidalgo. There was no organized government there in the early years, nor much law except that made by the miners who helped themselves to the land, gold, and water under rules and regulations of their own making as they went along. In the words of the United States Supreme Court (Jennison v. Kirk, 98 U.S. 453, 457, 1879), speaking through Justice Field who had been Chief Justice of California, the miners 'were emphatically the law-makers, as respects mining, upon the public lands in the state.'
"The rules and regulations of the miners were made by and for the individual camps and hence varied from one locality to another, but essentially the principles that they embodied were of masked uniformity. These principles related to the acquisition, holding and forfeiture of individual mining claims, based on the priority of discovery and diligence in working them. And to the acquisition and exercise of rights to the needed water were applied comparable principles-posting and recording notice of intention to divert a specific quantity of water, actual diversion and application of water to beneficial use with reasonable diligence, continued exercise of the right, priority of time of initiating the appropriation, and doctrine of prior appropriation of water for beneficial use. These property rights in land and water were thus had, held, and enjoyed under local rules that were enforced by community action."
In 1851, the California Legislature passed the California Practice Act stating: "In actions respecting Mining Claims, proof shall be admitted of customs, usages or regulations established and in force at the bar, or diggings, embracing such claim; and such customs, usages or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decisions of the action," (Stats. ch. 5, section 621, pg. 149; 9 Stat. L. 928.) This act affirmed common law, or customs and usages, as the rule in court decisions regarding mining. This included recognition of the rule of primacy of prior appropriation of water - or "first in time, first in right." Water rights of this era were upheld by the courts as "possessory rights" - perfect against any other claimant but the U.S. government.
The recognized method for legal appropriation of water followed principles relating to the establishment of mining claims. An appropriator would post notice of intention to divert a specified quantity of water, proceed with the diversion and application of the water to beneficial use with reasonable diligence and maintain the water right with continued use.
Priority of time established the primacy of right relative to other users. In Joerger v. Pacific Gas & Electric Co.,, 207 Calif. 8, 23, 24, 276 Pac. 1017; (1929,) the court stated:
"One of the essential elements of a valid appropriation is that of priority over others. Under this doctrine he who is first in time is first in right, and so long as he continues to apply water to a beneficial use, subsequent appropriators may not deprive him of the rights his appropriation gives him by diminishing the quantity or deteriorating the quality of the water.
[In Joerger, the court also stated that: "An enlargement of a water right may be made in the same manner as a new appropriation." An increase over the scope of the original appropriation as distinguished from progressive development originally contemplated and consummated with due diligence is subject to rights intervening between the making of the original appropriation and that of the enlargement.]
------------> "Public Lands" Section