7.1.3 Southwest (1820-1875): New Resource Use Rules for a New Region

Water Use Laws

Irwin v. Phillips – California, 1855 (5 Cal. 140); Bear River & Auburn Water & Mining Co. v. New York Mining Co. – California, 1857 (8 Cal. 327); Gillan v. Hutchinson – California, 1860 (16 Cal. 153)


  • The question of whether the newly Americanized Southwest would retain the appropriation doctrine came to the fore during the 1849 California gold rush.  Miners needed lots of water to sift gold from the gravel they excavated; seasonal runoff from the Sierras provided some water, but not enough for unrestricted use by all.
  • In Irwin and Bear River, the California supreme court adopted appropriation principles (which many miners had informally adopted even before law came to the mining region).  The first miner along a stream would have a right to take as much water as he wished, and other miners must respect that right whether they were located upstream or downstream, but the first miner must ultimately send the water he used back to the stream for others to use.  In Gillan, the court indicated that farmers had the same water rights as miners and emphasized that prior appropriators should make unused water available to others for all types of uses.   
  • The federal government, which owned the mining lands and could have established a different rule if it wanted, chose not to do so:  in 1866, it formally accepted the doctrine for public lands in parts of the West where water was scarce.  The California court left for another day the question of whether the rule would change when the government sold lands in the mining region to private owners.    


“The judiciary of this State has had thrown upon it responsibilities not incurred by the Courts of any other State in the Union.  In addition to those perplexing cases that must arise… in putting into practical operation, a new const and a new code of statutes, we have had a large class of cases unknown in the jurisprudence of our sister States.  The mining interest of the State has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us.  Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice.” – Justice Peter Burnett, in Bear River

“As a general rule, the public mineral lands of this state were open to the possession and occupancy of every person desiring, in good faith, to enter upon the same for mining purposes … [but] valuable and permanent improvements, such as houses, orchards, vineyards, etc., should undoubtedly be protected, as also growing crops of every description, for these are as useful and necessary as the gold produced by the working of the mines.” – Justice Warner Cope, in Gillan


Disentangling land titles of three nations
Sunol v. Hepburn – California, 1850 (1 Cal. 254); Pino v. Hatch – New Mexico, 1855 (1 N.M. 125); Gunn v. Bates – California, 1856 (6 Cal. 263)
  •  Land title issues bedeviled Southwest courts, and the U.S. Supreme Court, for many years after the end of the Mexican War.  Some Southwest lands were held by natives under Spanish and Mexican-era grants; some were held by early American settlers under similar grants given in the early 1800s to promote settlement; and some were held by recently-arrived American squatters who assumed that the American conquest voided all prior titles.  The picture was complicated by the fact that Manuel Micheltorena, California’s last Mexican governor, had freely awarded grants to his allies in the early 1840s in anticipation of forthcoming separation from Mexico.  
  • The treaty of peace with Mexico required the United States to honor “legitimate” land titles granted by Spain and Mexico.  In 1851 Congress established a claims commission to settle title disputes in the region, but, at the behest of California Senator William Gwin, it gave the final word to the courts.  In California, fierce disputes developed between settlers and squatters, including “transition owners” who had acquired deeds from Mexican grantees under dubious circumstances during the transition period between Mexican and American rule.
  • In Fremont v. United States (1854), the U.S. Supreme Court gave an important victory to transition owners:  it upheld the transition-era grant to John Fremont, Gwin’s senatorial colleague, of a huge tract in the Mariposa region, and indicated that courts should generally accept transfer documents at face value and not look too closely at whether the transfer represented good policy.  The Fremont decision pleased neither the California legislature, which had enacted laws favorable to squatters (who made up a large portion of California voters), nor the new state’s supreme court. 
  • In Sunol, California’s court signaled its sympathy to squatters by striking down an attempted transition-era transfer as void under the terms of the original Mexican grant and indicating that holders of Mexican and transition-era titles who failed to drive off squatters would lose their property rights.
  • In Gunn, California’s chief justice Hugh Murray openly criticized the Fremont decision and argued that courts should examine closely whether transition-era grants by Micheltorena and other Mexican officials had really been authorized by the government at Mexico City.  In Pino, New Mexico’s court (by a 2-1 vote) agreed with Murray that close examination of Mexican titles was appropriate, although it cautioned that deference should be given to all Mexican land grants not clearly fraudulent.

“If [Mexican provincial authorities] had not the legal authority to grant the title and fee-simple in the public domain, we must concede to them as having had the power to regulate the possession and prescribe rules for the occupancy of the domain.  The very necessity growing out of the condition of the inhabitants, their wants and welfare, presumes that power to have existed.”  - Justice Kirby Benedict, in Pino


“It is very unusual now in cases of conquest for the conqueror to do more than to displace the sovereign, and assume dominion over the country. … The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relation to each other and their rights of prop remain undisturbed.”    – Justice Perry Brocchus (dissenting), in Pino

 File:Golondrinas Acequia Flume.JPG
Acequia flume, Rancho de las Golondrinas, New Mexico - courtesy Archinia and Wikimedia Commons
[Gold miners, El Dorado, California]

Gold miners, El Dorado, California (ca. 1850) - courtesy Library of Congress

“[A] universal sense of necessity and propriety [has] fixed … the rights of miners … who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines, to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development.”  - Justice Solomon Heydenfeldt, in Irwin




John C. Fremont 

John C. Fremont (1856) - courtesy Library of Congress

File:Manuel Micheltorena.jpg

Manuel Micheltorena (ca. 1850) - courtesy Wikimedia Commons

“I cannot refrain from the opinion that in these cases [including the Fremont case] the Supreme Court … has entirely disregarded their previous decisions.  It is, however, a matter of congratulation to myself to know tha this wholesale abandonment of principles … was not unanimous, and that one of the Judges of that Bench [Justice John Catron], better acquainted, probably, than any of his associates, with that class of cases … dissented from the opinions in the case of Fremont and for reasons substantially the same as those which influenced the decisions of this Court.”  -Chief Justice Hugh Murray, in Gunn