Chapter 2 - § 2.3 • USE AND OCCUPATION OF FEDERAL LANDS

• Jurisdiction: Colorado

§ 2.3 • USE AND OCCUPATION OF FEDERAL LANDS

In addition to Territorial Laws, the U.S. Congress also influenced the application of the prior appropriation doctrine in Colorado. In 1862, Congress passed the Homestead Act, which allowed settlers, for a small fee, to occupy up to 160 acres of public land, and gave them title to this land if they improved it and resided there for at least five years.¹⁵ After the passage of this Act, many settlers moved west and farming communities joined mining towns in the growing western frontier. In Colorado alone, settlers made 107,618 homestead entries covering 22,146,400 acres of land.¹⁶

Four years later, Congress passed the Mining Act of 1866¹⁷ and, among many other things, expressly affirmed the rights to water use that had developed through local custom and formally sanctioned appropriations of water on public lands. Rather than mandating a specific method for acquiring water rights, Congress deferred to local custom or state law, allowing states to establish their own system to govern water rights and water disputes. An 1870 amendment to the Mining Act again recognized the prior appropriation system as a valid method for allocating water.¹⁸ This amendment held that riparian landowners who obtained title to their land from the government did not have a superior right over the prior appropriators, but that they were, in fact, subject to all previous water rights that were recognized by local custom.

The Desert Lands Act of 1877,¹⁹ which applied specifically to arid lands within Arizona, California, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming (and Colorado and parts of Texas, after a subsequent amendments), also confirmed the prior appropriation doctrine. This Act stated that water on public land was available for appropriation for irrigation, mining, and manufacturing purposes, subject to existing rights.²⁰ As explained in California Oregon Power Co. v. Beaver Portland Cement Co.,

As the owner of the public domain, the government possessed the power to dispose of land and water thereon together, or to dispose of them separately. Howell v. Johnson, 89 F. 556, 558. The fair construction of the provision now under review is that Congress intended to establish the rule that, for the future, the land should be patented separately, and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named.

...