Lux v. Haggin (Lux I) – California, 1884 (4 P. 919); Lux v. Haggin (Lux II) – California, 1886 (10 P. 674); Clough v. Wing – Arizona, 1888 (17 P. 453); United States v. Rio Grande Dam & Irrigation Co. – New Mexico, 1898 (51 P. 674)
“The
doctrine of appropriation thus established was not a temporary thing …
It was, as has been seen, born of the necessities of the country and its
people, was the growth of years, permanent in its character ..l [it was
never] contemplated that a conveyance of 40 acres of land, at the lower
end of a stream that flows for miles through public lands, should put
an end to subsequent appropriation of the waters of the stream upon the
public lands above, and entitled the grantee of the 40 acres to the
undiminished flow of the water in its natural channel from its source to
its mouth.” - Justice Erskine Ross (dissenting), in Lux I “[H]ow to save [water], to be conducted upon the land in aid of the husbandman … has been the problem in the arid portions of the earth. … The native tribes, the Pimas and Papagoes and other pueblo Indians, now, as they for generations have done, appropriate and use the waters of these streams in husbandry, and sacredly recognize the rights acquired by long use, and no right of a riparian owner is thought of … [T]he common law … has never been, and is not now, suited to conditions that exist here, so far as the same applies to the uses of water.” - Judge __Barnes, in Clough | ![]() Irrigation ditch, Kern County, California (circa 1880) - courtesy LIbrary of Congress “The public is in nothing more interested than in scrupulously protecting each individual citizen in every right guarantied to him by the law, and in sacrificing none, not even the most trivial, to further its own interest … It does not require a prophetic vision to anticipate that the adoption of the rule, so-called, of ‘appropriation,’ would result, in time, in a monopoly of all the waters of the state by comparatively few … or combinations of individuals, controlling aggregated capital, who could either apply the water to purposes useful to themselves, or sell it to those from whom they had taken it away.” - Justice Elisha McKinstry, in Lux II
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EMPIRE OF LAWS - The Legal History of the 50 American States > 7. SOUTHWEST LEGAL HISTORY > 7.2 Southwest (1870-1900): Integrating into the American Fabric >