All those miners in Calif. might want to give consideration to this: Nice info that may be of use.....worth saving.
California Civil Code of 1873
Effective January 1, 1873, water appropriators were given the option under California Civ. Code Sections 1410-1422 to file their water claims with the county recorder to preserve priority. Such filing officially dated the water right as of the filing date. If no filing was made, the water right was still valid, but dated back to the time the first substantial steps were taken to put the water to beneficial use. These options remained in effect in California until 1914.
In Wells v. Mantes, 99 Calif 583, 584, 34 Pac. 324, (1893), the court ruled that an appropriation completed without complying with the provisions of the Civil Code had priority over one initiated pursuant to the Civil Code, but after the completion of the nonstatutory appropriation.
In Duckworth v. Watsonville Water & Light Co., (170 Calif. 425, 432, 150 Pac. 58, (1915), the court stated:
"It has long been settled in this state that an appropriation under the [civil] code divests no existing private right, that its effect is merely to give preference over a subsequent appropriator or diverter who takes under no other right, or title, and to fix the date of the posting of the notice as the inception of the claim under it."
In Haight v. Costanich, 184 Calif. 426, 431, 433-434, 194 Pac 26; (1920,) on the question as to whether the Civil Code destroyed the doctrine of relation back for nonstatutory appropriators, the court stated:
"But the code section by its terms destroys the right of relation back of an appropriator who does not comply with the code, only as to a subsequent appropriator who does. As to all others, his rights are not affected by the code provisions and are to be determined by the law governing the subject of appropriations as it exists independently of the code."
The Water board does have the right to make rules and regulations. Any action brought in an administrative court will be an expensive and time consuming fiasco. The miners right to the water is prior to the Water Boards right to administer that water. A proper venue is a Superior court not an administrative court.
One should study these cases:
In Kimball v. Gearhart, 12 Calif. 27, 31, (1859), the court ruled that the mere construction of a ditch with the intention of appropriating water from a stream is not sufficient, in itself, to establish a right to the use of such water. The title is perfected when the appropriation is complete. When completion of the appropriation occurs, then the priority dates, by relation, from the beginning of the work, provided that the necessary prerequisites have been fulfilled. (See also Hewitt v. Story 64 Fed. 510, 514-515- C.C.A. 9th (1894.)
In Duckworth v. Watsonville Water & Light Co., 170 Calif. 425, 432, 150 Pac., (1915), the court stated in reference to the necessity of diligence and good faith in completion of the appropriation and evoking the doctrine of relation back:
"The principles established in the cases cited are founded in reason. The doctrine is that no man shall act upon the principle of the dog in the manger, by claiming water by certain preliminary acts, and from that moment prevent others from enjoying that which he is himself unable or unwilling to enjoy, and thereby prevent the development of the resources of the country by others."
Yuba River Power Co. v. Nevada Irr. Dist., (207 Calif. 521, 525, 279 Pac. 128, (1929) - Control of the water by taking it from the source of supply is necessary in exercising an appropriative right.
In Parks Canal and Mining Co. v. Hoyt, 57 Calif, 44, 46, (1880) the court affirmed that a water right does not attach unless one has acquired control of the water. (See also Bader Gold Min. Co. v. Oro Electric Corp. 245 Fed. 449, 451-452, C.C.A. 9th, (1917).
In Lux v. Haggin, 69 Calif. 225, 255, 338-339, 417-419, 4 Pac. 919, 1984; 10 Pac. 674, (1886) held, on a principle called "absolute territorial sovereignty." This assumed that the "owner" of the public domain was the U.S. (for the purposes of disposal.) As such, it could control the distribution of unappropriated waters on public land, even if this abrogated unvested riparian rights to those lands. It was only until after public land was disposed of that riparian rights inhered.
The court stated:
"It has often been held by the court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. It has never been held that the right to appropriate waters on the public lands of the United States was derived directly from the State of California as the owner of innavigable streams and their beds. And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully applied in the public lands of the United States, such rights have always been claimed to be deranged by private persons under the act of Congress, from the recognition accorded by the act, or from the acquiescence of the general government in previous appropriations made with its presumed sanction and approval."
That is simply what what the law says. The California Constitution does make a few restrictions on that right though. Here they are straight from Article X, Section 2 of the California Constitution:
Quote The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.
You might find it interesting that the Forest Service laws also specifically allow for water use for mining. The water grant in the 1866 Mining Act is found all throughout Federal law. Every agency and department is bound by that law.
Quote USC TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 524
Section 524. Rights-of-way for dams, reservoirs, or water plants for municipal, mining, and milling purposes
Rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the national forests of the United States, are granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said forests are respectively situated.
All this demonstrates that you have a right to the water needed to mine the mineral estate (1866). This right precedes the State Water Resources Control Board (SWRCA) right to determine who can use the water (1914). The SWRCA themselves admit that in their own literature.
Court decisions and the law respect the right to the water grant found in the 1866 Act. The Water Resources Control Board would like you to believe otherwise. They wish to pretend that their program regulations can override all those Federal and State laws and court decisions. They have no right to control mining on Public lands .
If miners and their organizations get fooled into believing that the SWRCA has some power to control mining THAT will be something to worry about. The issue is not the ticket itself but the denial of access to the mineral estate grantees rightful prior appropriation of the water "reasonably required for the beneficial use to be served".
To fight this nonsense (that I mentioned earlier in this thread)all miners need to be aware of their water grant. Getting a ticket will prove nothing. Being stopped while in the act of using your prior right to the water will be the issue that topples this out of control "program". It might well create the kind of judgement that would get dredgers back in the water in other States such as Oregon if the research was done for Oregon.
As you know Oregon requires a high banking permit.......oooppppssss!
Bejay
