"First in Time, First in Right"

An excellent description of the application of the principles of the Common Law 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...It was held that since the real owner of the water-rights, that is, the United States or the state, permitted these diversions and was not in court to assert its rights or to be bound by the decision, 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. The diversion of the water was declared to be the equivalent of possession and the doctrine was laid down that he who was first in time was first in right." (See also section on California Water Law - "Appropriation".)

Silver Lake Power & Irr. Co. v. Los Angeles, 176 Calif. 96, 101-102, 167 Pac. 697 (1917) established that the right of possession was a property right claimed under the color of title.

1865, Statutes at Large, vol. 13, p.44; U.S.C. vol. 30, section 53; directed that no possessory action for recovery of any mining title would be affected by the factor that the paramount title to the land belonged to the U.S. Each case would be judged by the law of possession.