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Western Legal History WESTERN LEGAL HISTORY THE JOURNAL OF THE NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY VOLUME 9, NUMBER I WINTER/SPRING 1996 Western Legal History is published semi-annually, in spring and fall, by the Ninth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena, California 91105, (818) 795-0266. The journal explores, analyzes, and presents the history of law, the legal profession, and the courts-particularly the federal courts-in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Western Legal History is sent to members of the Society as well as members of affiliated legal historical societies in the Ninth Circuit. Membership is open to all. Membership dues (individuals and institutions): Patron, $1,000 or more; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499; Sustaining, $100- $249; Advocate, $50-$99; Subscribing (non-members of the bench and bar, lawyers in practice fewer than five years, libraries, and academic institutions), $25-$49; Membership dues (law firms and corporations): Founder, $3,000 or more; Patron, $1,000-$2,999; Steward, $750-$999; Sponsor, $500-$749; Grantor, $250-$499. For information regarding membership, back issues of Western Legal History, and other society publications and programs, please write or telephone the editor. POSTMASTER: Please send change of address to: Editor Western Legal History 125 S. Grand Avenue Pasadena, California 91105 Western Legal History disclaims responsibility for statements made by authors and for accuracy of footnotes. Copyright, (01996, Ninth Judicial Circuit Historical Society ISSN 0896-2189 The Editorial Board welcomes unsolicited manuscripts, books for review, and reconumendations for the journal. Manuscripts (three copies, and one diskette in Wordperfect 5.0 or higher, if possible) should be sent to the Editor, Western Legal History, 125 S. Grand Avenue, Pasadena, California 91105. Texts, including quotations and endnotes, must be double-spaced. Notes must be numbered consecutively and appear in a separate section at the end of the text. Authors are requested to follow the style for citations used in this journal. Manuscripts that are no more than thirty pages in length, not counting notes, charts and tables, and photographs, are preferred. Also preferred are manu- scripts not concurrently under consideration by another journal. Whether because of prejudice or custom, writers in earlier times often used language considered strange or offensive today. Because Western Legal History publishes articles that present the historical record as accurately as possible, it occasionally publishes quotations containing such language. The publication of such is not to be construed as representing the attitudes of either the authors or Western Legal History. Communication with the editor is encouraged before submission of any manuscript. At that time, other guidelines for the preparation and publication of an article may be discussed. Consultation upon punctuation, grammar, style, and the like is made with the author, although the editor and the Editorial Board are the final arbiters of the article's acceptance and appearance. Articles published in this journal are abstracted and indexed in America: History and Life; HistoricalAbstracts; the Index to Legal Periodicals;and the Legal Resources Index. NINTH JUDICIAL CIRcurT HISTORICAL SOCIETY BOARD OF DIRECTORS HON. JAMES R. BROWNING EDWARD J. McANIFF, ESQ. Chairman San Francisco San Francisco MICHAEL E. McNICHOLS, ESQ. JAMES P. KLEINBERG, ESQ. Lewiston President MARGARET M. MORROW, ESQ. San Jose Los Angeles CHRISTINE S W. BYRD, ESQ. RONALD L. OLSON, ESQ. Vice President Los Angeles Los Angeles HON. DIARMUID F. O'SCANNLAIN GERSHAM GOLDSTEIN, ESQ. Portland Treasurer FORREST A. PLANT, ESQ. Portland Sacramento CHET ORLOFF HON. MANUEL L. REAL Secretary Los Angeles Portland CHARLES B. RENFREW, ESQ. JEROME L BRAUN, ESQ, San Francisco Immediate Past President San Francisco HON. PAUL G. ROSENBLATT Phoenix H, JESSE ARNELLE, ESQ. San Francisco GUY ROUNSAVILLE, JR., ESQ. San Francisco LEROY J. BARKER, ESQ. Anchorage HON. MARY M, SCHROEDER Phoenix HON. JAMES M. BURNS Portland GARVIN F. SHALLENBERGER, ESQ. Costa Mesa DAVID A. CATHCART, ESQ. Los Angeles DONALD C. SMALTZ ESQ. Los Angeles BARBARA A. CAULFIELD, ESQ, San Francisco GERALD K. SMITH, ESQ. Phoenix GEORGE W. COOMBE, JR., ESQ. San Francisco HON. JOSEPH T. SNEED San Francisco JOHN L. COOPER, ESQ. San Francisco CHRISTINA A. SNYDER, ESQ. Los Angeles GEORGE C. DALTHORP, ESQ. Billings WILLIAM E. TRAUTMAN, ESQ. San Francisco F BRUCE DODGE, ESQ. San Francisco D. BURR UDALL, ESQ. Tucson JEROME B. FALK, JR., ESQ. San Francisco WILLIAM W. VAUGHN, ESQ. Los Angeles MURRAY M. FIELDS, ESQ. Los Angeles ROBERT S. WARREN, ESQ. Los Angeles MAX L. GILLAM, ESQ. Los Angeles BOARD MEMBERS EMERITI HON. ALFRED T. GOODWIN Pasadena JOSEPH A. BALL, ESQ. RONALD M. GOULD, ESQ. Long Beach Seattle ALLAN E. CHARLES, ESQ. HON. PROCTER HUG, JR. San Francisco Reno MORRIS M. DOYLE, ESQ. J. STERLING HUTCHESON, ESQ. San Francisco San Diego SHIRLEY M. HUFSTEDLER, ESQ. HON. SUSAN Y. ILLSTON Los Angeles Burlingame LEONARD S. JANOFSKY, ESQ. ELWOOD S. KENDRICK, ESQ, Santa Monica Los Ang les HON. SAMUEL P. KING FREDERICK K KUNZEL, ESQ Honolulu San Diego SHARP WHITMORE, ESQ. SHERMAN V. LOHN, ESQ. Fallbrook Missoula THOMAS R. MALCOLM, ESQ, BRADLEY B. WILLIAMS Irvine Director WESTERN LEGAL HISTORY BRADLEY B. WILLIAMS, Editor PHILIPPA BRUNSMAN, Assistant Editor EDITORIAL BOARD JUDITH AUSTIN MARI MATSUDA Idaho State Historical Society Law School Center, GORDON M. BAKKEN Georgetown University California State University, R. JAMES MOONEY Fullerton University of Oregon Law MICHAL R. BELKNAP School California Western School of CLAUS-M. NASKE Law University of Alaska, HON. JAMES R. BROWNING Fairbanks Circuit Judge, U.S. Court of PETER NYCUM Appeals for the Ninth Circuit Northwestern School of Law, ELIZABETH J. CABRASER, ESQ. Lewis and Clark College San Francisco KENNETH O'REILLY ERIC A. CHIAPPINELLI University of Alaska, School of Law, Seattle Anchorage University PAULA PETRIK LAWRENCE M. FRIEDMAN University of Maine Stanford Law School PETER L. REICH CHRISTIAN G. FRITZ Whittier Law School University of New Mexico JOHN PHILLIP REID School of Law New York University HON. ALFRED T. GOODWIN School of Law Senior Circuit Judge, U.S. Court HARRY N. SCHEIBER, PH.D. of Appeals for the Ninth Circuit Boalt Hall, University of ROBERT W. GORDON California Yale Law School MOLLY SELVIN, PH.D. MICHAEL GRIFFITH Santa Monica Archivist, U.S. District Court, CHARLES H. SHELDON Northern District of California Washington State University JAMES W. HULSE CAROLINE P. STOEL University of Nevada, Reno Portland State University LOUISE LaMOTHE, ESQ. STEPHEN L. WASBY Los Angeles State University of New York, DAVID J. LANGUM Albany Cumberland School of Law, JOHN R. WUNDER Samford University University of Nebraska WESTERN LEGAL HISTORY VOLUME 9, NUMBER 1 WINTER/SPRING 1996 CONTENTS Studies in Western Water: Historiographical Trends Peter L. Reich, Guest Editor The Politics of Village Water Disputes in Northern New Mexico, 1882-1905 David A. Reichard Delph E. Carpenter and the Principle of Equitable Apportionment Daniel Tyler 35 The Mismeasure of the Pecos River: Royce Tipton and the 1948 Pecos River Compact G. Emlen Hall 55 Water Quality, Water Rights, and History in the Sacramento-San Joaquin Delta: A Public Historian's Perspective Alan M. Paterson 75 Book Reviews 97 Articles of Related Interest 113 Memberships and Contributions 117 Cover Photograph:The Alabama Gates on the Los Angeles Aqueduct, in California's Owens Valley, symbolize the often contentious struggle over the development of water law in the West, the subject of this special issue. (Photograph by James Bledsoe, c. 1913, Courtesy of the Department of Water and Power, City of Los Angeles) Hoover Dam on the Colorado River, completed in 1936. STUDIES IN WESTERN WATER LAW: HISTORIOGRAPHICAL TRENDS PETER L. REICH As recent scholars have emphasized, the seri- ous historical analysis of western water law began with Walter Prescott Webb's 1931 classic, The Great Plains.' In a section on the development of prior appropriation,2 Webb found antece- dents to the doctrine in the Hispanic Southwest before the 1848 U.S. occupation,3 and postulated that the West's aridity accounted for priority's adoption by Anglo-Americans.4 Accord- ing to Webb, "The justification of the arid-region doctrine is found in the physical conditions of the country in which it has been adopted."I He attributed conflicts over water rights to Peter L. Reich is professor of law at Whittier Law School. He has published widely on environmental law and legal history, and won the 1995 Ray Allen Billington Award from the West- ern History Association for an article on Hispanic water law in southwestern state courts. Copyright @ 1996 Peter L. Reich 'Walter Prescott Webb, The GreatPlains (Boston 1931) [hereafter cited as Webb, Great Plains), For discussions of Webb's importance, see Kermit L. Hall, "The 'Magic Mirror' and the Promise of Western Legal History at the Bicentennial of the Constitution," Western HistoricalQuarterly 18 (October 1987), 433; Donald J. Pisani, "Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century," Western Historical Quarterly 18 (January 1987), 15 [hereafter cited as Pisani, "Enterprise and Equity"]. 'Webb, Great Plains, supra note 1 at 431-52. Prior appropriation, prevalent in the western United States, grants an
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