6

RECOGNITION OF VESTED WATER RIGHTS

Sec. 2339, R. S. [Vested rights to use of water-Right of way for canalsLiability for injury.]-Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

EXPLANATORY NOTES

Derivation. The foregoing section 2339 of The Revised Statutes of the United States is taken from section 9 of the Act of July 26, 1866, ch. 262, 14 Stat. 251, 253, entitled "An Act granting the Right-of-Way to Ditch and Canal Owners over the Public Lands, and for other Purposes." It was enacted as substantive law, as part of the first edition of the Revised Statutes, by the Act approved June 22, 1874.

Codification. R.S. § 2339 is codified both in 30 U.S.C. § 51 and in 43 U.S.C. § 661.

Rights of way 2 Water rights 1 1. Water rights

The latter also includes R.S. § 2340, taken from the Act of July 9, 1870, which appears herein in chronological order.

Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation.

Popular Name. The Act of July 26, 1866, is sometimes referred to as the Mining Act of 1866, and section 9 is sometimes referred to as the Water Rights Act of 1866.

NOTES OF OPINIONS

on

In reviewing a license issued by the Federal Power Commission for a water power project on a non-navigable stream reserved lands of the United States, it is not necessary for the court to pass upon the contention of the State of Oregon that the Acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 constitute an express Congressional delegation or conveyance to the State of the power to regulate the use of such waters because those Acts do not apply to reserved lands. Federal Power Commission v. Oregon, 349 U.S. 435, 446-48 (1955).

By section 9 of the Act of July 26, 1866, section 1 of the Desert Land Act of 1877, and section 18 of the Act of March 3, 1891, Congress recognized and assented to the

267-067-72—vol. I- -4

10

PATENTS SUBJECT TO VESTED WATER RIGHTS

Sec. 2340, R.S. [Patents, preemption, and homesteads subject to vested and accrued water rights.]—All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.

EXPLANATORY NOTES

Derivation. The foregoing section 2340 of The Revised Statutes of the United States is taken from section 17 of the Act of July 9, 1870, ch. 235, 16 Stat. 217, 218, entitled "An Act to Amend 'An Act Granting the Right-of-Way to Ditch and Canal Owners over the Public Lands, and for other Purposes.' ." It was enacted as substantive law, as part of the first edition of the Revised Statutes, by the Act approved June 22, 1874.

Codification. R.S. § 2340 is codified both in 30 U.S.C. § 52 and in 43 U.S.C. § 661. The latter also includes R.S. § 2339, taken from the Act of July 26, 1866, which appears herein in chronological order.

Editor's Note, Annotations. Annotations of opinions are not included because this statute does not relate primarily to activities of the Bureau of Reclamation.

11

TREATY WITH GREAT BRITAIN

Treaty for an amicable settlement of all causes of differences between the United States and Great Britain. (Signed at Washington May 8, 1871; ratifications exchanged June 17, 1871; proclaimed July 4, 1871; 17 Stat. 863)

*

ARTICLE XXVI

[Navigation of St. Lawrence.]-The navigation of the river St. Lawrence, ascending and descending, from the forty-fifth parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the dominion of Canada, not inconsistent with such privilege of free navigation.

[Navigation of Yukon, Porcupine and Stikine.]-The navigation of the rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of her Britannic Majesty and to the citizens of the United States, subject to any laws and regulations of either country within its own territory, not inconsistent with such privilege of free navigation. (17 Stat. 872).

12

DESERT LAND ACT

An act to provide for the sale of desert lands in certain States and Territories. (Act of March 3, 1877, ch. 107, 19 Stat. 377)

[Sec. 1. Desert land entries and patent-Water rights-Proof of reclamation-320 acres. ]-It shall be lawful for any citizen of the United States, or any person of requisite age "who may be entitled to become a citizen, and who has filed his declaration to become such" and upon payment of twenty five cents per acre—to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one-half section, by conducting water upon the same, within the period of three years thereafter, Provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of three hundred and twenty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said one-half section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding three hundred and twenty acres to any one person, a patent for the same shall be issued to him. Except as provided in section 3 of the Act of June 16, 1955 (69 Stat. 138), as amended, no person may make more than one entry under this Act. However, in that entry one or more tracts may be included, and the tracts so entered need not be contiguous. The aggregate acreage of desert land which may be entered by any one person under this section shall not exceed three hundred and twenty acres, and all the tracts entered by one person shall be sufficiently close to each other to be managed satisfactorily as an economic unit, as determined under rules and regulations issued by the Secretary of the Interior. (19 Stat. 377; § 1, Act of August 30, 1890, 26 Stat. 391; § 1, Act of August 14, 1958, 72 Stat. 596; 43 U.S.C. § 321)

EXPLANATORY NOTES

1958 Amendment. Section 1 of the Act of August 14, 1958, 72 Stat. 596, inserted the last two sentences as a substitute for the original requirement that the tract of land covered by the entry had to be in compact form. For legislative history of the

1958 Act see S. 359, Public Law 85-641 in the 85th Congress; S. Rept. No. 270; H.R. Rept. No. 2324.

1890 Amendment. The Act of August 30, 1890, 26 Stat. 391, provided generally that no person entering public lands thereafter