Foundational Principles
Three principles were the foundation for the massive body of Western State law that evolved largely in California to govern the use of public domain lands in the absence of Congressional action or enforcement:
The Doctrine of Presumption;
The right of possession; andx
Period of silent acquiescence.
In Conger v. Weaver, 6 Cal. 548, 555; (1856), the California Supreme Court relied on the Doctrine of Presumption, under which it was presumed from the absence of specific legislation, that everyone who wished to "appropriate" water or to dig gold on the public domain within California had "license" to do so, provided that the prior rights of others were not thereby infringed.
These principles were affirmed in numerous subsequent cases such as McDonald v. Bear River and Auburn Water and Min. Co.. 13 Calif. 220, 232; (1859,) where the ownership of a water right "as a substantive and valuable property" was held to be "distinct sometimes, from the land through which it flows."
In California, until transfer of title from the public lands to private ownership could be made through patent, the "right of possession" and priority of use, determined the right of ownership in water use, mineral extraction, range use, rights-of-way, entry and homesteading of land as between individuals. This right was considered perfect against any claimant but the U.S.
An excellent description of the application of the principles of the right of possession or "first in time, first in right" may be found in the 1914 case of Palmer v. Railroad Commission, 167 Calif. 163, 168, 138, 170-173, 138 Pac 997 where the Court stated:
"An analogy was found in the rules of the common law relating to controversies over the possession of land between persons who had no title thereto and in which the real owner did not interfere or intervene...the matter between the persons litigating was to be decided according to the rules of law in regard to priority of possession of the land."
As time progressed, the eastern U.S. government, embroiled in the issues of slavery and the Civil War, made no effort to assert ownership control over the public domain and its resources. Land, mineral claims, water use rights, the right to customary range and rights of way were staked out, developed and sold. The California courts recognized the legitimacy of such transactions based on the "right of possession" sanctioned by the long "period of silent acquiescence" (evident by the inaction of the U.S. Congress,) as tacit consent. (See the 1877 case of Forbes v. Gracey, (94 U.S. 762, 763, 766-767.)
