7.2.1 Southwest (1870-1900): Water Law for a Growing Region

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)

  • In the 1850s, California adopted the prior appropriation doctrine of water rights to serve the needs of the state’s mining boom.  First users of streams, including users that did not own or hold land containing or next to the streams, could take as much water as they liked, but they had to return all water remaining after use to the stream for other landholders (§ ___).  California’s supreme court left it open whether the rule would continue as California filled up with settlers and the U.S. government sold them public lands. 
  • In 1872, California answered that question “no” when the legislature adopted a modified riparian rights doctrine.  A decade later, in the Lux cases, a divided supreme court confirmed that the age of prior appropriation had ended.  The majority, speaking through Justices __ Sharpstein and __ McKinstry, held that  only riparian landowners would have a right to water, and that they were obligated to return any unused water for use by other landowners along the same stream.  Much of California’s prime land was held by syndicates, including Lux’s group, and the majority expressed concern that prior appropriation would encourage monopolization of water as well as land. 
  • Three dissenting justices argued that appropriation was best suited for California, many parts of which depended on irrigation in order to grow crops.  They objected that the riparian doctrine would encourage waste of water and would force landowners without access to streams to rely on water companies, which would encourage monopoly.  Despite continuing concerns about land and water monopolization, the Lux doctrine remained the law in California for nearly a half century.       
  • The Spanish-Mexican acequia system continued in effect in New Mexico and Arizona after the American conquest, and was never seriously challenged.    When American forces took control of New Mexico in 1846, Gen. Stephen Kearny proclaimed that Spanish and Mexican water law would remain in effect, and late in the century, in Clough and Rio Grande Arizona and New Mexico territorial courts confirmed the acequia system. 
“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
 Alfalfa field & irrigation ditch, Rio Bravo Ranch

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