A Treatise on the Law of Riparian Rights as the Same is Formulated and Applied in the Pacific States: Including the Doctrine of Appropriation

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West Publishing Company, 1887 - 307 strani
 

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Doctrine of appropriation unknown to the common
21
Basis of right to appropriate water
22
Grounds for presumption of license
23
Efficacy of miners customs
24
APPROPRIATION AS AGAINST THE SUBSEQUENT GRANTEE OF THE GOVERNMENT 25 Title of subsequent grantee is subject to prior appro...
37
California decisions on this point
38
Views of United States supreme court
40
The act of 1870 is declaratory only
41
Public lands of the state
43
THE RighT RESTRICTED TO THE PUBLIC DOMAIN 30 Appropriation confined to public lands
44
Jurisdiction of state and United States distinguished 32 Power of government to annex conditions to grants
46
Intent to apply water to beneficial
47
CONFLICTING CLAIMS BETWEEN SETTLERS AND APPROPRIATORS 33 Converse of doctrine of appropriation
48
When title from United States is perfected
49
When patentees riparian rights vest
50
Review of the authorities on this point
51
Reasonable diligence in completion of works
52
When appropriation is complete
53
Appropriation relates back to first step
54
Riparian rights protected
56
Doctrine of relation applied to patentees
57
Grounds for the application of this doctrine
58
California decisions 41 Review of the cases
59
Riparian rights under Mexican grants
67
Summary of conclusions
70
CHAPTER IV
73
Amount of water which the appropriator is entitled to
79
Carrying capacity of ditch
80
True capacity of ditch the proper measure
81
Rights of subsequent appropriator
82
Successive appropriations
83
Periodical appropriations
84
CHAPTER V
85
Division of increase in stream 87 Wrongful diversion of springs V ABANDONMENT OF Rigiit
86
roperty in ditches and canals
88
Sale of ditches and waterrights
89
Tenancy in common
90
Right to natural flow of water at head of ditch
92
Wbat are streams subject to appropriation
93
Definition and characteristics of a watercourse
94
Percolating and subterraneous waters
97
Right to exclusive use of water
98
Damages from mode of construction or operation of works 76 Discharge of mining debris
119
Effects of hydraulic mining a public nuisance 78 Impounding dams
129
Tendency of decision in Ellis v Tone
130
The question as to irrigation stated
131
No right to irrigate nonriparian lands
132
Prior appropriation gives no exclusive right
133
Relative equality of riparian owners
134
Size of stream
135
Reasonable use for irrigation
136
Easements and adverse user
137
Relation of irrigation to the natural wants
138
Summary of principles
139
Irrigation The English authorities
140
French
141
Review of the American authorities
142
Review of authorities continuedThe Pacific cases
143
Surplus water must be restored
144
REVIEW OF THE SYSTEM 91 This system as a whole
145
Defects of the system
146
Presumption that stream was on public land
148
CHAPTER VI
150
Application of the common
151
CONTENTS ix
155
THE EFFECT OF THIS LEGISLATION 106 Riparian rights abolished
171
Two distinct systems
172
CHAPTER VII
174
Prescriptive waterrigbts
199
USES TO WHICH THE WATER MAY BE PUT 119 General statement of riparian rights Van Sickle v Haines
200
Modifications on doctrine of Van Sickle v Haines
217
Legitimate riparian uses
219
California decisions 123 Natural uses
220
Secondary uses
221
Reasonable riparian
222
Reasonable use for manufactures
225
CHAPTER VIII
227
CHAPTER IX
259
Summary of statutory legislationCalifornia 97 Nevada
Montana 99 Colorado 100 Idaho 101 Dakota 102 New Mexico 103 Arizona
Colorado system criticised 151 Legislation must respect natural laws and natural rights 152 Natural rights and advantages of riparian owners 153 Leg...
Wyoming 105 Utah
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Stran 22 - That whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same...
Stran 22 - ... rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of Courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed...
Stran 46 - When the Revolution took place the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government.
Stran 93 - To maintain the right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown to flow continually, as stated above, and it may at times be dry; but it must have a well-defined and substantial existence": Angell on Watercourses (6 ed), §4.
Stran 46 - The shores of navigable waters and the soils under them were not granted by the Constitution to the United States, but were reserved to the States respectively.
Stran 12 - the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it.
Stran 23 - We are of opinion that the section of the act which we have quoted 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.
Stran 18 - The state legislature, after some consideration, declared by statute that in "actions respecting 'Mining Claims' proof shall be admitted of the 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 decision of the action.
Stran 9 - an incident to the land; and that whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law.
Stran 11 - ... solebat), without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct...

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