SECTION 2338, REVISED STATUTES. As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent. Same as section 5, act of July 26, 1866 (14 Stat. 251), p. 632. A. PURPOSE OF SECTION. 1. STATE LAWS FOR WORKING MINES. 2. MINING EASEMENTS. 1. STATE LAWS FOR WORKING MINES. This section permits any State or Territory to provide rules for working mines and for their complete development in the absence of necessary legislation by Congress. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 509. Butte City Water Co. v. Baker, 196 U. S. 119, p. 123. This section provides that in the absence of necessary legislation by Congress a State legislature may provide rules for working mines involving easements, drainage, and other necessary means to their complete development. Calhoun Gold Min. Co., v. Ajax Gold Min. Co., 27 Colo. 1, p. 26. 2. MINING EASEMENTS. A State may enact such laws for mining easements as under the construction of State courts might grant tunnel rights. Baillie v. Larson, 138 Fed. 177, p. 178. By this section easements for working mines, drainage, etc., are excluded from the purview of the mining statute, leaving these matters for state regulation. Jacob v. Day, 111 Cal. 571, p. 576. The reservation of an easement for the proper working of a mining claim must be inserted in a patent where it is necessary to protect any such easement. Hendricks, In re, Sickels' Min. L. & D. 464, p. 465. An easement for a tail race essential in carrying off water and débris from the operation of a hydraulic mine is not an easement within the contemplation of this section. Jacob v. Day, 111 Cal. 571, p. 578. 608 SECTION 2339, REVISED STATUTES. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. See 28 Stat. 635; 2 Supp. 367; 30 Stat. 11, p. 36. Same as section 9 of the act of July 26, 1866 (14 Stat. 251, p. 253), p. 633. A. CONSTRUCTION AND APPLICATION OF SECTION. B. EASEMENTS GRANTED AND PROTECTED, p. 612. C. WATER RIGHTS-LOCAL LAWS AND CUSTOMS, p. 616. D. USES OF WATER CONTEMPLATED, p. 619. E. RIPARIAN RIGHTS APPLICATION TO PUBLIC LANDS, p. 619. F. ABANDONMENT OR FORFEITURE OF WATER RIGHTS, p. 620. G. WATER RIGHTS NOT SUBJECT TO PATENT, p. 621. H. ADVERSE CLAIMS-WATER RIGHTS, p. 621. I. FEDERAL COURTS JURISDICTION, p. 621. A. CONSTRUCTION AND APPLICATION OF SECTION. 1. PURPOSE AND APPLICATION. 2 GRANT OF WATER RIGHTS. 3. RIGHT TO APPROPRIATE WATER. 4. EXTENT OF RIGHT OF APPROPRIATION OF WATER. 1. PURPOSE AND APPLICATION. There are some verbal changes in the section of the act of 1866 (14 Stat. 251) as reenacted in the Revised Statutes, but none affecting its substance and meaning. Jennison v. Kirk, 98 U. S. 453, p. 456. Miocene Ditch Co. v. Jacobsen, 2 Alaska 567, p. 573. The object of this section was to give the sanction of the Government to possessory rights which had previously rested solely upon the local customs, laws, and decisions, and to prevent such rights being lost upon the sale of the land. Jennison v. Kirk, 98 U. S. 453, p. 456. Kern River Co., In re, 38 L. D. 302, p. 309. Miocene Ditch Co. v. Jacobsen, 2 Alaska 567, p. 573. See Isaacs v. Barber, 10 Wash. 124, p. 130. This section is to be read in connection with other provisions of the mining statutes and in the light of matters of public history relating to the mineral lands of the United States. Jennison v. Kirk, 98 U. S. 453, p. 457. This section is rather a voluntary recognition of a preexisting right of possession constituting a valid claim to its continued use than the establishment of a new right. Broder v. Water Co., 101 U. S. 274, p. 276. Mohl v. Lamar Canal Co., 128 Fed. 776, p. 779. Hoge v. Eaton, 135 Fed. 411, p. 414. See Eaton v. Hoge, 141 Fed. 64. Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85, p. 89. Atchison v. Peterson, 87 U. S. 507. Basey v. Gallagher, 87 U. S. 670. Jennison v. Kirk, 98 U. S. 453. The act of 1866 (14 Stat. 251) recognized but did not create the water rights and the right to the use of water for mining and other purposes therein mentioned. Jones v. Adams, 19 Nev. 78, p. 88. Carson v. Gentner, 33 Oreg. 512, p. 519. Willey v. Decker, 11 Wyo. 496, p. 521. See Reno Smelting, etc., Works v. Stevenson, 20 Nev. 269, p. 275. United States v. Rio Grande, etc., Irrig. Co., 174 U. S. 690. Neither this nor the succeeding section contemplates the reservation of land for the purpose of constructing ditches or reservoirs. Huerfano Valley Ditch & Reservoir Co., In re, 10 L. D. 171, p. 172. 2. GRANT OF WATER RIGHTS. This section is not only found in the body of the mining acts passed by Congress and classified therewith by statute, as well as by courts and law writers, but next to the right to mine on the public domain it grants to miners the most valuable incident thereto, the right to use the public waters in mining, which is the very essence of the mineral laws, without which mining could not be made profitable. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 325. While this and the succeeding section protect vested water rights, yet it can neither grant nor protect a right appurtenant to that in connection with which the water was to be beneficially used; and while a vested right to the use of water for milling purposes carries with it the right of way for a ditch through which to divert water, yet it does not carry with it as an appurtenance a right to the land on which a mill is constructed. Cleary v. Skiffich, 28 Colo. 362, p. 373. The right to the use of water for mining or other purposes, as permitted by this section, is not unrestricted, but it must be exercised within reasonable limits. Rio Grande Western R. Co. v. Telluride Power, etc., Co., 16 Utah 125, p. 137. 3. RIGHT TO APPROPRIATE WATER. Proprietors have the right to appropriate water of a stream and convey it for mining purposes to points where it can not be restored to the stream. Atchison v. Peterson, 87 U. S. 507. Clark v. Allaman, 71 Kan. 206, p. 240. The doctrine of appropriation under this section applies only to public lands and waters of the United States. Winters v. United States, 143 Fed. 740, p. 747. See United States v. Conrad Investment Co., 156 Fed. 123, p. 126. Conrad Investment Co. v. United States, 161 Fed. 829. An appropriation of land for the use of water must be made under this section and not under section 2337. Cyprus Mill Site, In re, 6 L. D. 706, p. 709. The right given by this section to appropriate water for mining and other domestic purposes includes the right to do that which is reasonably necessary to effectuate the diversion by the construction of a dam or other means of turning the water from its natural channel. United States v. Conrad Investment Co., 156 Fed. 123, p. 128. Affirmed in Conrad Investment Co. v. United States, 161 Fed. 829. A person locating on a mining stream is entitled to a reasonable and proper use of the channel and water, and equity will not restrain mining operations on the ground that some sand and tailings incident to such operations happen to be washed on the land of the lower proprietor. Carson v. Hayes, 39 Oreg. 97, p. 104. See Atchison v. Peterson, 87 U. S. 507. McCauley v. McKeig, 8 Mont. 389. The Government has, by the provisions of this and the following sections, recognized the rights of appropriating water and taking the same from its natural channel. Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, p. 525. Stenger v. Tharp, 17 S. Dak. 13, p. 20. 4. EXTENT OF RIGHT OF APPROPRIATION OF WATER. By this section Congress did not intend to release its control over the navigable streams of mining districts, and permit the appropriation of waters so as to destroytheir navigability, but it intended to permit the appropriation of waters of streams not navigable in the mining regions whose waters could be so appropriated for mining and other purposes, without serious interference with the navigability of the streams into which those waters flow, and Congress, by this section, only intended to give its assent to any system, though in contravention to the common-law rule, which permitted the appropriation of the waters for such purposes. United States v. Rio Grande, etc., Irrig. Co., 174 U. S. 690, p. 706. The rights of claimants, under this section, as to the use of water in mining and other purposes are in nowise dependent upon the act of March 3, 1891 (26 Stat. 1095, p. 1101), or upon the approval of the maps contemplated by that act. Lincoln County Water Supply & Land Co. v. Big Sandy Reservoir Co., 32 L. D. 463, p. 464. Santa Fe, etc., R. Co., In re, 29 L. D. 213. A mining company which has lawfully appropriated the waters of a stream for mining purposes may enjoin another mining company from sinking a shaft for the purpose of developing its own claim, where such shaft will or does in fact cut off and divert the waters of such stream. Copper King v. Wabash Min. Co., 114 Fed. 991, p. 993. The law applicable to the appropriation of surface streams and the vested rights protected by this section have no application to percolating waters arising in the land of an owner and carried through artificial drains constructed by him for the purpose of improving his property, or for his own convenience. Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444, p. 456. Water percolating from a mining claim, after passing into an underground artificial tunnel used in developing a mine, is not subject to appropriation by another while it remains in the tunnel upon the owner's land; but if allowed to flow out of such tunnel and away from the appropriator's land into a lake upon the public land the water is then subject to appropriation, but the appropriator would not thereby acquire an ease ment in the mining claim or a prescriptive right to have a continuous flow of the water from the tunnel into the lake. Crescent Mining Co. v. Silver King Min. Co., 17 Utah 444, p. 448. This section does not confer upon a person the right to enter upon the lands in the possession of another for the purpose of securing water thereon, but simply provides for protecting such rights in the use of water as may have vested and accrued by priority of possession and are recognized and acknowledged by local customs, laws, and decisions. Taylor v. Abbott, 103 Cal. 421, p. 423. 5. WHAT CONSTITUTES APPROPRIATION OF WATER. To constitute a valid appropriation of water under this section three elements must exist: (1) An intent to apply the water to some beneficial use existing or contemplated; (2) a diversion from the natural channel by means of a ditch, canal, or other method; and (3) an application thereof to some useful industry. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 333. See Miocene Ditch Co. v. Champion Min., etc., Co., 3 Alaska 572, p. 581. Oviatt v. Big Four Min. Co., 39 Oreg. 118, p. 126. 6. PRESUMPTION AS TO APPROPRIATION OF WATER. The locator of a placer claim is presumed to intend to appropriate the water flowing in the channel of a river through such location, as well as the channel, the banks, and all territory embraced within the location, to the business of mining. Schwab v. Bean, 86 Fed. 41, p. 43. Denied in Snyder v. Colorado Gold Dredging Co., 181 Fed. 62. A placer location appropriates all waters covered by it in so far as they are necessary for working the claim. Schwab v. Bean, 86 Fed. 41, p. 42. Madigan v. Kougarok Min. Co., 3 Alaska 63, p. 69. In a controversy over a ditch for mining purposes it may be assumed that the water was appropriated and conducted by means of ditches between the termini thereof, in accordance with the custom of the district and the laws of the State. Gest v. Packwood, 34 Fed. 368, p. 371. B. EASEMENTS GRANTED AND PROTECTED. 1. RIGHTS OF WAY FOR CANALS AND DITCHES. 2. WATER RIGHTS DETERMINED BY PRIORITY OF APPROPRIATION. 3. VESTED WATER RIGHTS PROTECTED. 4. WATER RIGHTS PROTECTED AGAINST OTHER CLAIMANTS. 5. TIME OF ACQUIRING WATER RIGHTS-PROTECTION. 6. NATURE OF WATER RIGHTS PROTECTED. 7. CHANGE IN WATER RIGHTS NOT PERMITTED. 1. RIGHTS OF WAY FOR CANALS AND DITCHES. The act of Congress of July 26, 1866 (14 Stat. 251, sec. 9), was an unequivocal grant of the right of way for a canal to convey water for mining purposes, and confirmed to the owners of such canal all preexisting rights which the Government had by its policy |