« PrejšnjaNaprej »
The late Professor POWEROY, during his editorship of the West Coast Reporter, published in that journal a series of articles on water rights and riparian privileges in the Pacific states, which attracted much attention from the legal profession in those communities, and elicited high commendation by reason of their learning, candor, and comprehensive grasp of the subject. In consequence of the peculiarities of the law of riparian rights obtaining in California, Nevada, and the adjacent states and territories, the limited applicability of the common-law rules, the prevalence of that unique system known as the doctrine of appropriation, and the novelty and importance of the questions presented to the courts, the appearance of these articles was timely and significant, and they formed a valuable addition to the literature of the subject. The plates and copyrights of the West Coast Reporter having come into the ownership of the publishers of the present work, it was decided to reprint the articles in question in the form of a text-book; and they constitute the basis of the monograph now offered to the profession. It is to be regretted, for several reasons, that this undertaking could not have had the benefit of the author's own superintendence and revision; and especially because the doctrines and results of the later cases cannot, perhaps, be so harmoniously blended into the original work by a stranger's hand. But the editor has endeavored to perform this office to the best of his opportunities. Apart from the breaking of the work into chapters, and the introduction of section numbers and appropriate head-lines, he has been scrupulous to preserve intact both the language and the arrangement of Professor POMEROY, making only such slight changes in phraseology as were rendered necessary by the altered form of publication. All the later authorities have been carefully collated, and their views and resultsas also a considerable number of cases not cited by the author -have been incorporated in the work in one form or another. The general plan has been to make these interpolations in the way of additional foot-notes. But it was found that several topics of great importance were first broached by the later cases, and that points which were but imperfectly developed when the original articles were prepared had been clarified or enlarged upon. It then became necessary for the editor to write new sections; and these, being inserted in their proper connection, have added considerably to the bulk of the work. But in every instance of a new foot-note or a new section, the editor's material is to be distinguished from that of the author by the fact that it is inclosed in brackets. With a view to further facility in the use of the book, an index and a table of cases are added.
TABLE OF CONTENTS.
I. ORIGIN AND Basis OF THE RIGHT TO APPROPRIATE.
& 12. Scope of the present chapter.
18. Early importance of mining interests.
14. Mining customs.
25. Title of subsequent grantee is subject to prior appropriation.
26. California decisions on this point.
27. Views of United States supreme court.
28. The act of 1870 is declaratory only.
29. Public lands of the state.
III. THE RIGHT RESTRICTED TO THE PUBLIC DOMAIN.
30. Appropriation confined to public lands.
31. Jurisdiction of state and United States distinguished.
32. Power of government to annex conditions to grants.
IV. CONFLICTING CLAIMS BETWEEN SETTLERS AND APPROPRIATORS.
33. Converse of doctrine of appropriation.
34. When title from United States is perfected.
35. When patentee's riparian rights vest.
36. Review of the authorities on this point,
37. Riparian rights protected.
38. Doctrine of relation applied to patentees.
39. Grounds for the application of this doctrine.
40. California decisions.
41. Review of the cases.
42. Later decisions establishing doctrine of relation.
43. Riparian rights under Mexican grants.
44. Summary of conclusions.
HOW AN APPROPRIATION IS EFFECTED.
& 45. Successive appropriations.
46. Doctrines which control the appropriation.