Industrial Minerals - Water Laws Related to Mining (Mining Engineering, Feb 1960, pg 153)

Water laws important to the mining industry are those which govern or affect the right to use water, to dispose of water after using it in mining or milling, and to discharge waste material into watercourses. They include statutes and court decisions having general applicability, as well as others that pertain specifically to mining. THE INDUSTRY'S CONTRIBUTION TO WESTERN WATER LAW Despite sharp differences of opinion, the water law the Spaniards brought to the Southwest appears to have included some form of appropriation of water. The Mormons, who settled in Utah in the mid-nineteenth century, also developed a system of appro-priative water titles. But by far the most profound impact on western water law was made by the gold-seekers who flocked to the Sierra Nevada foothills of California after the discovery of gold in 1848. Much of the gold was extracted from the ground by hydraulic or placer mining, and so the miners' rights to the use of water became fundamentally important. Since there was no organized government in the foothills and no laws other than those made by the miners, they helped themselves to the land, the gold, and the water needed to work their claims.1 They established and enforced regulations governing the acquirement and holding of mining claims and their rights to the water they needed.' In 1879 Justice Field, former Chief Justice of the California Supreme Court, spoke for the U. S. Supreme Court in saying that the miners were "emphatically the law-makers, as respects mining, upon the public lands in the State."" Rules of the California mining camps were based on two essential principles: 1) priority in discovering claims and appropriating water by diverting it from streams and putting it to use, and 2) diligence in working claims and applying water in mining. The customs so developed, which were copied in mining areas of other states and territories, were enacted into law in one western jurisdiction after another. They form the basis of what is called the arid-region doctrine of prior appropriation of water, which received the attention of Congress in legislation recognizing and protecting appropriations of water for mining, agriculture, and other purposes on the public domain.' In several western states a great number of water cases decided in the early years involved relative rights to the use of water for mining purposes or for milling connected with mining." The miner's inch, the customary unit for measuring water in the mining camps, is still used in various western communities, although its relation to the cubic foot per second varies from one area to another. Undoubtedly, the miners of a century ago made the major contribution to the appropriation doctrine as it is now recognized and applied throughout the West. What inspired the California gold-seekers to develop these principles? Thoughtful writers have pointed out that their regulations and customs were strikingly characteristic of much earlier mining enterprises in the Old World.D It is said that the right of free mining and free use of flowing water therefor —so similar to the California conditions and practices—-was a part of the customs of Germanic miners in the Middle Ages, that it spread from middle Europe to other countries and colonies, and that the doctrine of prior appropriation was widespread in the important mining regions of the world. Certainly the Forty-niners came to California from many countries. It does not tax the imagination to consider that they may have brought with them some knowledge of the old Germanic customs and applied this knowledge in their new environment. RIGHTS TO USE OF WATER IN GENERAL In the West, rights to the use of water of watercourses fall into two categories—appropriative and riparian. The doctrine of prior appropriation is recognized in each of the 17 western states. The riparian doctrine is recognized concurrently with the appropriation doctrine in some of these states but has been abrogated in the others. The riparian doctrine prevails generally throughout the East, although there is now considerable interest in developing something else. Generally speaking, the appropriation doctrine has been highly developed in the West, whereas the principles of riparian doctrine have been comprehensively established in only a few states throughout the country. The subject of water rights is a big one. Space permits no more than a brief discussion of aspects that bear upon the title of this article. RIGHTS OF PRIOR APPROPRIATION Fundamental to the doctrine of prior appropriation is the principle first in time, first in right. Although in some states there are statutory exceptions. the original and still generally prevailing rule is that the first one who initiates a right to divert and use water of a stream, and who completes his undertaking with reasonable diligence, acquires thereby the first right of appropriation of the specific quantity of water involved. Each succeeding right in point of time is junior to all earlier rights but senior to all later ones. The practical effect of this priority system is that when the water supply is not enough for all, the earliest rights must be fully satisfied before any water may be taken by those later in time. Acquirement of Appropriative Rights: Each of the 17 western states has a statute under which water may be appropriated pursuant to a prescribed procedure. Generally, the first step to be taken by the intending appropriator is to file application in the office of the State Engineer for a permit to make the appropriation. In most but not a11 states, valid ap-