Ls Land Issue 29 Summer Time 1 10 164
1. A patent issued under the Homestead law, after the date of the Desert Land Act of 1877, for lands in the State of Oregon bordering on a nonnavigable stream does not, of its own force, invest the owner of the land with a common law right to have the water flow ut solebat, as against an opposite riparian owner who seeks,
Ls Land Issue 29 Summer Time 1 10 164
Held, that the effect was to sever all waters upon the public domain, not theretofore appropriated, from the land itself, and that a patent issued thereafter for lands in a desert land State or Territory, under any of the land laws of the United States, carried with it, of its own force, no common law right to the water flowing through or bordering upon the lands conveyed. Pp. 155-158.
The terms of the statute, thus construed, must be read into every patent thereafter issued, with the same force as though expressly incorporated therein, with the result that the grantee will take the legal title to the land conveyed, and such title, and only such title, to the flowing waters thereon as shall be fixed or acknowledged
Rogue River is a nonnavigable stream, and in its course flows through and between lands of petitioner on the east bank of the river and lands of respondents upon the west bank, the thread of the stream being the boundary between the two. Petitioner's lands were acquired by a predecessor in interest in 1885 by patent from the United States under the Homestead Act, May 20, 1862. The lands were purchased by petitioner and conveyed to it in 1921. Petitioner is a public service corporation engaged in manufacturing and supplying electrical current to its customers. The City of Gold Hill, a municipal corporation, owns the lands on the west side of the river, and the Beaver Portland Cement Company is in possession of them, together with certain adjudicated water rights and permits issued from the office of the state engineer, under a contract of sale from the city. The blasting complained of was all west of the thread of the stream, on respondents' property, and was for the double purpose of freeing the channel, incident to the use of the water rights adjudicated and permitted, and securing broken stone for a dam to be used in connection with a power plant which the cement company was about to build.
To these ends, prior to the summer of 1877, Congress had passed the mining laws, the homestead and preemption laws, and, finally, the Desert Land Act. It had encouraged and assisted, by making large land grants to aid the building of the Pacific railroads and in many other ways, the redemption of this immense landed estate. That body thoroughly understood that an enforcement of the common law rule, by greatly retarding, if not forbidding, the diversion of waters from their accustomed channels, would disastrously affect the policy of dividing the public domain into small holdings and effecting their distribution among innumerable settlers. In respect of the area embraced by the desert land states, with the exception of a comparatively narrow strip along the Pacific seaboard, it had become evident to Congress, as it had to the inhabitants, that the future growth and wellbeing of the entire region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water. The streams and other sources of supply from which this water must come was separated from one another by wide stretches of parched and barren land which never could be made to produce agricultural crops except by the
In the light of the foregoing considerations, the Desert Land Act was passed, and in their light it must now be construed. By its terms, not only all surplus water over and above such as might be appropriated and used by the desert land entrymen, but "the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable" were to remain "free for the appropriation and use of the public for irrigation, mining and manufacturing purposes." If this language is to be given its natural meaning, and we see no reason why it should not, it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. From that premise, it follows that a patent issued thereafter for lands in a desert land state or territory, under any of the land laws of the United States, carried with it, of its own force, no common law right to the water flowing through or bordering upon the lands conveyed. While this Court thus far has not found it necessary to determine that precise question, its words, so far as they go, tend strongly to support the conclusion which we have suggested.
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. The words that the water of all sources of water supply upon the public lands and not navigable "shall remain and be held free for the appropriation and use of the public" are not susceptible of any other construction. The only exception made is that in favor of existing rights, and the only rule spoken of is that of appropriation. It is hard to see how a more definite intention to sever the land and water could be evinced. The terms of the statute, thus construed, must be read into every patent thereafter issued with the same force as though expressly incorporated therein, with the result that the grantee will take the legal title to the land conveyed, and such title, and only such title, to the flowing waters thereon as shall be fixed or acknowledged by the customs, laws, and judicial decisions of the state of their location. If it be conceded that, in the absence of federal legislation, the state would be powerless to affect the riparian rights of the United States or its grantees, still the authority of Congress to vest such power in the state, and that it has done so by the legislation to which we have referred, cannot be doubted.
We begin by comparing the merged analysis of precipitation of Xie and Arkin (1996) and the monthly OLR flux obtained from the NOAA/CPC for the 8-yr period from July 1987 to June 1995. The total precipitation amount and the total OLR flux are each partitioned into a mean annual cycle and an anomaly, which are defined for each 2.5 2.5 grid area and for each calendar month as the mean value for the 8-yr period and the difference between the total and the 8-yr mean for that month, respectively. Correlation coefficients between the total OLR and total precipitation, and between their mean annual cycles and anomalies, are computed over various areas and for various seasons. Figures 1 and 2 show time series of the pattern correlation for the total value (thin solid line), mean annual cycle (thick solid line), and anomaly (dotted line) over seven latitudinal zones over land and oceanic areas, respectively. Figure 3 presents the global distribution of the temporal correlations for the totals and their two components. These correlations are statistically significant at the 1% level for values greater than 0.2 in Figs. 1 and 2 and greater than 0.26 in Fig. 3.
Figure 9 shows the distributions of mean precipitation from the OPI, GPI, Grody estimates, and the gauge-based analysis of Xie et al. (1996) for the 8-yr period from July 1987 to June 1995. Since the OPI is based on the 8-yr merged analysis of Xie and Arkin (1996), which uses the gauge data as one of its input data sources, the OPI is not independent of the gauge data for that period. All three kinds of satellite estimates display similar large-scale patterns of mean precipitation. The OPI estimates exhibit better agreement in amplitude when compared to the gauge-based analysis than do the other two satellite estimates, which overestimate precipitation over land areas (e.g., over tropical Africa and South America). To ensure that the success of the OPI in estimating precipitation over global land areas is not due entirely to its dependence on the gauge observations for that period, we compare the mean distributions of precipitation from the OPI estimates and the gauge-based analysis for the period from June 1974to June 1987 (Fig. 10), during which the OPI estimates are completely independent of the gauge data. The GPI and the Grody estimates are not included in this comparison because the GPI estimates are only available for a short time (from January 1986), while the Grody estimates are not available at all. Once again, the patterns of the OPI estimates are similar and the amplitude is very close to the gauge-based analysis over tropical as well as extratropical land areas. 350c69d7ab