The Origins of Prior Appropriation
The Origins of Prior Appropriation
Chapter 7 examines the creation in the courts of the fundamental basis for California water law: the principle of prior appropriation. The principle of prior appropriation did not emerge immediately; rather, it only occurred when mining moved away from surface water and water came to be diverted from remote sources. At the same time, however, we also observe the side-by-side emergence of water rights based upon riparian law, in good part because of a legislative mandate to apply English common law principles to water disputes. Part of the challenge faced by the courts was to create a consistent doctrine that respected both appropriative and riparian principles while promoting the widespread use of water in mining. They met this challenge by invoking the public lands status of the gold fields, whereas riparian rights were based on private land ownership. This freed them to adopt other English common law principles to justify the first possession principles on which prior appropriation is based. In a series of rulings, the Court filled out additional elements of the appropriative right, including defining due diligence in prosecuting construction of a ditch, beneficial use, and the use requirement.
Keywords: appropriative right, riparian right, quantification, beneficial use, use requirement, abandonment
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