Dunbar does not address this thorny question. What has resulted is a remarkably useful survey of the flourishing of these  new  rights in western waters. Students of resource policy as well as water law historians will find this volume crucial to any beginning studies on this complex topic. It offers encouragement and understanding even to the timid who previously had avoided the jungle of water resource law in the West

Rowley, William D.

English

UNL | Libraries

University of Nebraska - Lincoln 
DigitalCommons@University of Nebraska - Lincoln 
Great Plains Quarterly Great Plains Studies, Center for 
1986 
Review of Forging New Rights in Western Waters By Robert G. 
Dunbar 
William D. Rowley 
University of Nevada - Reno 
Follow this and additional works at: https://digitalcommons.unl.edu/greatplainsquarterly 
 Part of the Other International and Area Studies Commons 
Rowley, William D., "Review of Forging New Rights in Western Waters By Robert G. Dunbar" (1986). Great 
Plains Quarterly. 959. 
https://digitalcommons.unl.edu/greatplainsquarterly/959 
This Article is brought to you for free and open access by the Great Plains Studies, Center for at 
DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Great Plains Quarterly by an 
authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 
312 GREAT PLAINS QUARTERLY, FALL 1986 
Forging New Rights in Western Waters. By 
Robert G. Dunbar. Lincoln: University of 
Nebraska Press, 1983. Map, notes, bibliog-
raphy, index. xii + 217 pp. $19.95. 
After briefly sketching the beginnings of 
Native American, Spanish, Mormon, and 
Hudson Bay Company attempts to divert 
waters, Robert Dunbar's message begins with 
the water situation in early Colorado. From 
there he moves to a thorough discussion of the 
Wyoming System of water distribution, 
adopted with modifications by other states, 
and its chief architect, water engineer and 
reclamation specialist Elwood Mead. 
Basically the Wyoming System acknowl-
edged the right of the state to create a water 
czar, the state water engineer. In accordance 
with the customs of prior appropriation and 
beneficial use, the state engineer issued permits 
for the use of water. This orderly system 
helped to remove the courts from the process 
and to impose order upon a chaotic process of 
water rights appropriation. The federal gov-
ernment also promoted control from one 
central office in the state after the passage of 
the National Reclamation Act in 1902. Surface 
waters were regulated first, but New Mexico 
soon adopted a permit system for underground 
waters. In this system (rather contrary to 
surface appropriation doctrine) the first user 
does not have the right to all of the water nor 
does the first user have the right to maintain 
an unusually high water level to the exclusion 
of other users. 
Two more areas are of primary importance 
in the distribution of western waters-rights to 
the waters of interstate rivers and water rights 
for federally reserved land in the West. States 
circumvented the courts with a system of 
interstate compacts to achieve agreements 
(allowed by the U.S. Constitution) on the 
distribution of water and hydroelectric power 
from interstate rivers. The Colorado River 
Compact among six western states in the 1920s 
led the way in this type of water resource 
distribution. Water law legislation is a state-by-
state undertaking having its own peculiar 
state-based history, which is further compli-
cated by the federal government's ownership 
of public lands and Indian reservations, forest 
reserves, and military reservations. The U.S. 
BOOK REVIEWS 313 
Supreme Court's Winters decision in 1908 
increased the federal government's right to 
command water for its land reservations by 
asserting the doctrine of "reserved rights." 
Many will be thankful that Dunbar has 
presented a comprehensive survey of water 
rights systems in the western states, including 
the illusory California doctrine, rather than a 
historical discussion of the origins of water law 
modification from the traditional riparian 
rights in humid states to the prior appropria-
tion doctrine in arid western states. The 
subject has consumed some historians, but 
Dunbar matter-of-factly assumes modification 
came in response to environmental conditions 
in the West a la Walter Prescott Webb in The 
Great Plains (1931). 
Others, however, have been more troubled 
by this question. Legal historians Harry N. 
Scheiber and Charles W. McCurdy (Agricul-
tural History, January 1975) stress the rise of the 
doctrine of "takings" or eminent domain in 
eastern states. When the court system en-
dorsed the diversion of waters and the denial 
of riparian rights based upon "unique climatic 
and soil considerations in the arid Western 
states," it "tended to obscure the fact that its 
decision culminated a long-and historically 
continuous-tradition in American property 
law." 
Dunbar does not address this thorny 
question. What has resulted is a remarkably 
useful survey of the flourishing of these "new" 
rights in western waters. Students of resource 
policy as well as water law historians will find 
this volume crucial to any beginning studies 
on this complex topic. It offers encouragement 
and understanding even to the timid who 
previously had avoided the jungle of water 
resource law in the West. 
WILLIAM D. ROWLEY 
Department of History 
University of Nevada-Reno 


Review of \u3ci\u3eForging New Rights in Western Waters\u3c/i\u3e By Robert G. Dunbar

DigitalCommons@University of Nebraska

University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Great Plains Quarterly Great Plains Studies, Center for 1986 Review of Forging New Rights in Western Waters By Robert G. Dunbar William D. Rowley University of Nevada - Reno Follow this and additional works at: https://digitalcommons.unl.edu/greatplainsquarterly  Part of the Other International and Area Studies Commons Rowley, William D., "Review of Forging New Rights in Western Waters By Robert G. Dunbar" (1986). Great Plains Quarterly. 959. https://digitalcommons.unl.edu/greatplainsquarterly/959 This Article is brought to you for free and open access by the Great Plains Studies, Center for at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Great Plains Quarterly by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 312 GREAT PLAINS QUARTERLY, FALL 1986 Forging New Rights in Western Waters. By Robert G. Dunbar. Lincoln: University of Nebraska Press, 1983. Map, notes, bibliog-raphy, index. xii + 217 pp. $19.95. After briefly sketching the beginnings of Native American, Spanish, Mormon, and Hudson Bay Company attempts to divert waters, Robert Dunbar's message begins with the water situation in early Colorado. From there he moves to a thorough discussion of the Wyoming System of water distribution, adopted with modifications by other states, and its chief architect, water engineer and reclamation specialist Elwood Mead. Basically the Wyoming System acknowl-edged the right of the state to create a water czar, the state water engineer. In accordance with the customs of prior appropriation and beneficial use, the state engineer issued permits for the use of water. This orderly system helped to remove the courts from the process and to impose order upon a chaotic process of water rights appropriation. The federal gov-ernment also promoted control from one central office in the state after the passage of the National Reclamation Act in 1902. Surface waters were regulated first, but New Mexico soon adopted a permit system for underground waters. In this system (rather contrary to surface appropriation doctrine) the first user does not have the right to all of the water nor does the first user have the right to maintain an unusually high water level to the exclusion of other users. Two more areas are of primary importance in the distribution of western waters-rights to the waters of interstate rivers and water rights for federally reserved land in the West. States circumvented the courts with a system of interstate compacts to achieve agreements (allowed by the U.S. Constitution) on the distribution of water and hydroelectric power from interstate rivers. The Colorado River Compact among six western states in the 1920s led the way in this type of water resource distribution. Water law legislation is a state-by-state undertaking having its own peculiar state-based history, which is further compli-cated by the federal government's ownership of public lands and Indian reservations, forest reserves, and military reservations. The U.S. BOOK REVIEWS 313 Supreme Court's Winters decision in 1908 increased the federal government's right to command water for its land reservations by asserting the doctrine of "reserved rights." Many will be thankful that Dunbar has presented a comprehensive survey of water rights systems in the western states, including the illusory California doctrine, rather than a historical discussion of the origins of water law modification from the traditional riparian rights in humid states to the prior appropria-tion doctrine in arid western states. The subject has consumed some historians, but Dunbar matter-of-factly assumes modification came in response to environmental conditions in the West a la Walter Prescott Webb in The Great Plains (1931). Others, however, have been more troubled by this question. Legal historians Harry N. Scheiber and Charles W. McCurdy (Agricul-tural History, January 1975) stress the rise of the doctrine of "takings" or eminent domain in eastern states. When the court system en-dorsed the diversion of waters and the denial of riparian rights based upon "unique climatic and soil considerations in the arid Western states," it "tended to obscure the fact that its decision culminated a long-and historically continuous-tradition in American property law." Dunbar does not address this thorny question. What has resulted is a remarkably useful survey of the flourishing of these "new" rights in western waters. Students of resource policy as well as water law historians will find this volume crucial to any beginning studies on this complex topic. It offers encouragement and understanding even to the timid who previously had avoided the jungle of water resource law in the West. WILLIAM D. ROWLEY Department of History University of Nevada-Reno 

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Review of \u3ci\u3eForging New Rights in Western Waters\u3c/i\u3e By Robert G. Dunbar

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