theretofore recognized; and accordingly a person taking title to land subsequent to the enactment of this statute took the title subject to any existing right of way. Broder v. Water Co., 101 U. S. 274, p. 275. Lincoln County Water Supply & Land Co. v. Big Sandy Reservoir Co., 32 L. D. 463, p. 464. Osgood v. El Dorado Water, etc., Min. Co., 56 Cal. 571, p. 581. Coffin v. Left Hand Ditch Co., 6 Colo. 443, p. 447. Carson v. Gentner, 33 Oreg. 512, p. 519. Congress, by this section, granted the right of way over the public lands for ditches used in appropriating and applying waters for beneficial uses, including mining. Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 65. This is merely a recognition by the United States of water rights acquired under usage, customs, and laws of the State, and in addition recognizes the rights of persons acquiring such rights to go across the public lands. Palmer, In re, 38 L. D. 294, p. 309. This and the next succeeding section provides that the right of way for the construction of ditches and canals for the use of water for mining and other purposes are protected, and all patents granted and all preemptions or homesteads allowed shall be subject to any vested or accrued water rights, or rights to ditches or reservoirs used in connection with such rights. Boglino v. Giorgetta, 20 Colo. App. 338, p. 344. This section vests in the person the right of way for a ditch when he accepts the offer of donation therein made by the Government by constructing the ditch. Welch v. Garrett, 5 Idaho 639, p. 641. See McDougal v. Lame, 39 Oreg. 212, p. 216. A right of way for a flume to conduct water for mining purposes is an easement fully protected by this section of the statute. Rockwell v. Graham, 9 Colo. 36, p. 37. Congress, in the early history of the western country, enacted this and section 2340 R. S., recognizing and granting rights of way across public lands for ditches and canals used for mining and other purposes and required subsequent patents to be subject to such easements. Green v. Wilhite, 14 Idaho 238, p. 246. Under this and the succeeding section, no one can acquire as against the Government a vested easement in and to the public lands for a reservoir site until the actual completion of the reservoir, so that the water thereby impounded can be applied to the beneficial uses contemplated by the irrigation system of which it forms a part. United States v. Rickey Land & Cattle Co., 164 Fed. 496, p. 499. Bear Lake, etc., Irrig. Co. v. Garland, 164 U. S. 1, p. 16. By this section ditches for mining purposes are declared to be real property, and the laws relative to the sale and transfer of real estate apply to the transfer of such ditches. Gest v. Packwood, 34 Fed. 368, p. 371. This section does not authorize the construction of a right of way across reserved lands of the United States, but is limited to the public lands. Kern River Co., In re, 38 L. D. 302, p. 309. Under this section a discoverer of percolating waters on public lands by digging a well acquires an easement in the land for the maintenance of such well and the right to the water as against a subsequent locator of the land. Sullivan v. Northern Spy Min. Co. 11 Utah 438, p. 442. Brosnan v. Harris, 39 Oreg. 148, p. 151. See Deadwood Central R. Co. v. Barker, 14 S. Dak. 558, p. 571. Crescent Min. Co. v. Silver King Min. Co., 17 Utah 444, p. 456. 2. WATER RIGHTS DETERMINED BY PRIORITY OF APPROPRIATION. The first appropriator of any mine, or of water in the streams on public lands for mining purposes, has a better right than others to work the mines or use the water, and he is regarded, except as against the Government, as the source of all title in all controversies relating to the property. Atchison v. Peterson, 87 U. S. 507, p. 510. Basey v. Gallagher, 87 U. S. 670, p. 681. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. See Revenue Min. Co. v. Balderston, 2 Alaska 363. Miocene Ditch Co. v. Jacobsen, 2 Alaska 567. Madigan v. Kougarok Min. Co., 3 Alaska 63. 335. Miocene Ditch Co. v. Champion Min., etc., Co., 3 Alaska 572, p. 584. The rule is that the right to running waters on the public lands for mining purposes may be acquired by prior appropriation, as against parties not having the title of the Government; and the right exercised within reasonable limits will be protected by the courts. Basey v. Gallagher, 87 U. S. 670, p. 683. Howell v. Johnson, 89 Fed. 556, p. 558. Osgood v. El Dorado Water, etc., Min. Co., 56 Cal. 571. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 334. Barnes v. Sabron, 10 Nev. 217, p. 230. To carry water to mining localities when they were not on the bank of a stream or lake became an important and necessary business in mining operations, and the first appropriator of water to be conveyed to such localities for mining or other beneficial purposes was recognized as having to the extent of actual use the better right. Jennison v. Kirk, 98 U. S. 453, p. 458. Mc Farland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 330. See Jacob v. Day, 111 Cal. 571, p. 578. In order to establish any rights under this section it is necessary to prove the priority of possession. Telluride Power, etc., Co. v. Rio Grande, etc., R. Co., 175 U. S. 639, p. 645. Creeed & Cripple Creek, etc., Co. v. Uinta Tunnel, etc., Co., 196 U. S. 337, p. 358. Where parties contesting the right to appropriate water, both based upon placer locations, the claim of the one first making the appropriation is superior. Schwab v. Bean, 86 Fed. 41, p. 44. See Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 69. Thorndyke v. Alaska Perseverance Min. Co., 164 Fed. 657. Madigan v. Kougarok Min. Co., 3 Alaska 63, p. 70. The rights of parties must be determined by priority of location as between water rights for mining or other purposes and preemption rights. Driskill v. Rebbe, 22 S. Dak. 242, p. 252. See Scott v. Toomey, 8 S. Dak. 639. The right acquired by prior appropriation of water on the public domain is held to be founded in grant from the United States Government as owner of the land and water. Willey v. Decker, 11 Wyo. 496, p. 515. See Coffin v. Left Hand Ditch Co., Colo. 443. Smith v. Deniff, 24 Mont. 20. Jones v. Adams, 17 Nev. 78. Reno Smelting, etc., Works v. Stevenson, 20 Nev. 269. Moyer v. Preston, 6 Wyo. 308. By this section all rights to the use of water acquired by prior appropriation for mining or other purposes were confirmed. Hill v. Lenormand, 2 Ariz. 354, p. 357. An increased appropriation of water for operating a placer mining claim, which is initiated and maintained by an unlawful trespass upon the lands of another in the nature of an unauthorized enlargment of an existing ditch, creates no right as against the owner of the property on which such tresspass is committed. Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 70. The owner of a mining claim and the owner of a water right enjoy their respective properties from the dates of their appropriations, the first in time being the first in right; but where both rights can be enjoyed without interference with, or material impairment of each other, such enjoyment is permitted. Jennison v. Kirk, 98 U. S. 453, p. 461. See Barnes v. Sabron, 10 Nev. 217, p. 230. Water rights are acquired by priority of appropriation and are governed by local customs and laws, and are protected by the provisions of this and the following section but they are not patentable as water rights or rights of way. Lennig, In re, 5 L. D. 190, p. 191. See Broder v. Water Co., 101 U. S. 274. The right to the use of water for mining purposes is determined under this section by priority of possession, and when rights to the use of water for such purposes have accrued and are recognized by the local customs and laws, the owner of such rights is protected. Telluride Power, etc., Co. v. Rio Grande, etc., R. Co., 175 U. S. 639, p. 645. 3. VESTED WATER RIGHTS PROTECTED. This section protects priority of possession in rights to the use of water for mining purposes where such rights have vested and are recognized and acknowledged by the local customs, laws, and decisions. Blackburn v. Portland Gold Min. Co., 175 U. S. 571, p. 587. Noland v. Coon, 1 Alaska 36, p. 38. Madigan v. Kougarok Min. Co., 3 Alaska 63, p. 70. Kern River Co., In re, 38 L. D. 302, p. 304. Lux v. Haggin, 69 Cal. 225. Jacob v. Lorenz, 98 Cal. 332, p. 335. McGuire v. Brown, 106 Cal. 660, p. 666. Smith v. Hawkins, 110 Cal. 122, p. 125. Brosnan v. Harris, 39 Oreg. 148, p. 151. Parkersville District v. Wattier, 48 Oreg. 332, p. 338. These sections protect a person who has acquired a right to the water of a stream flowing through the public lands by prior appropriation in accordance with the laws of the State where the appropriation was made as against subsequent appropriators though in a different State. Howell v. Johnson, 89 Fed. 556. Morris v. Bean, 123 Fed. 618, p. 619. Anderson v. Bassman, 140 Fed. 14, p. 20. Morris v. Bean, 146 Fed. 423. Bean v. Morris, 159 Fed. 651. Vested rights to the use of water for mining and other purposes are protected by this section and such rights are not lost by nonuser alone, short of the period for the limitation of action to recover the real property. Dodge v. Marden, 7 Oreg. 456, pp. 457, 458. See Lewis v. McClure, 9 Oreg. 273, p. 274. Where the waters of a stream are appropriated in connection with a placer mining claim the owner of the claim is entitled to have them continue without diminution subject to the reasonable use of riparian owners higher up the stream. Schwab v. Bean, 86 Fed. 41, p. 43. See Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 69. 4. WATER RIGHTS PROTECTED AGAINST OTHER CLAIMANTS. It is only vested and accrued rights to the use of water which are reserved by the operation of this and the following section that without these provisions would vest in the homestead claimant. McGuire v. Brown, 106 Cal. 660, p. 667. This section amended the original act of July 26, 1866 (14 Stat. 251), and made the homestead subject to vested and accrued water rights used for mining and other purposes. De Wolfskill v. Smith, 5 Cal. App. 175, p. 182. The purchaser of a mine from a patentee takes the title to such mine subject to any vested water rights or ditches existing prior to the patent for such mine. Jacob v. Day, 111 Cal. 571, p. 579. 5. TIME OF ACQUIRING WATER RIGHTS- -PROTECTION. The rights of miners who have worked and developed mines, and who have constructed canals and ditches to be used in mining operations in regions where artificial water is a necessity, are rights which the Government recognized and encouraged, and which it was bound to protect before the passage of the act of 1866. Broder v. Water Co., 101 U. S. 274, p. 276. Mohl v. Lamar Canal Co., 128 Fed. 776, p. 779. United States v. Rio Grande Irrig. Co., 174 U. S. 690. Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85, p. 89. Isaacs v. Barber, 10 Wash. 124, p. 131. The protection afforded by this and the following section apply to water rights acquired after the enactment of the statute of July 26, 1866 (14 Stat. 251), as well as those vested and accrued prior to the passage of the act. Jacob v. Lorenz, 98 Cal. 332, p. 335. 6. NATURE OF WATER RIGHTS PROTECTED. This and the following section recognize and protect vested water rights used for mining purposes, but they do not give a right or easement to deposit mining débris on the lands of another. Helena etc., Smelting etc., Co., In re, 48 Fed. 609, p. 610. This section makes a clear distinction between the discharge of superfluous water encountered in quartz and drift mines and the water conveyed through ditches and flumes for the purpose of operating a hydraulic mine, and vested rights in the latter are protected by this section. Jacob v. Day, 111 Cal. 571, p. 577. 7. CHANGE IN WATER RIGHTS NOT PERMITTED. This and the next succeeding section fully protect vested water rights and the right to maintain a dam in a stream as originally maintained, but give them no right to construct and maintain a new dam in such manner as to place a greater servitude than was originally borne by the lands of the riparian owner. Greeley Irrig. Co. v. Von Trotha, 48 Colo. 12, p. 18. C. WATER RIGHTS-LOCAL LAWS AND CUSTOMS. 1. STATE LAWS AFFECTING WATER RIGHTS. 2. LOCAL CUSTOMS AND REGULATIONS OF MINERS. 3. WATER RIGHT LAWS IN FORCE IN ALASKA. 1. STATE LAWS AFFECTING WATER RIGHTS. A State by its statute can not take from a private individual the water rights granted him by the General Government. Howell v. Johnson, 89 Fed. 556, p. 559. The power of Congress over nonnavigable streams flowing through the public lands is superior to that of the local State, as such streams are a part of the public domain, and Congress may grant the use of such streams for mining or other purposes separate from the land. Howell v. Johnson, 89 Fed. 556, p. 557. See Morris v. Bean, 123 Fed. 618. Morris v. Bean, 146 Fed. 423. Bean v. Morris, 159 Fed. 651, p. 654. The effect of this statute is to recognize, at least as to the United States, the validity of the local customs, laws, and decisions of courts in respect to the appropriation of water. United States v. Rio Grande Irrig. Co., 174 U. S. 690, p. 704. Gutierres v. Albuquerque Land, etc., Co., 188 U. S. 545, p. 553. The local customs and laws sanctioned and approved by the act of 1866, enlarged the common law rule as to uses which could be made of water, but they had no application as to the granting of such rights by the General Government or a State Government, and while a person who diverts water from a natural stream for mining purposes may so use it as long as he conforms to the law, he has no contract with or grant from either the Federal or State Government so to do. Mohl v. Lamar Canal Co., 128 Fed. 776, p. 779. See Lamar Canal Co. v. Amity Land & Irrig. Co., 26 Colo. 370. Hoge v. Eaton, 135 Fed. 411, p. 414. Eaton v. Hoge, 141 Fed. 64. Under this section, as well as section 2340 R. S., the question to be determined is what appropriation is required by the usage, customs, laws, and decisions of the courts in order to bring it within the provisions of these sections. Deadwood Central R. Co. v. Barker, 14 S. Dak. 558, p. 573. 2. LOCAL CUSTOMS AND REGULATIONS OF MINERS. From 1848 to 1866 the regulations and customs of miners, as enforced and molded by the courts and sanctioned by State legislation, constituted the law governing property in mines and in water on the public mineral lands. Jennison v. Kirk, 98 U. S. 453, p. 458. See Gillis v. Downey, 85 Fed. 483, p. 486. Northmore v. Simmons, 97 Fed. 386, p. 389. The act of Congress recognizes as valid the customary law with respect to the use of water which had grown up among the occupants of the public land, and that such law may be shown by evidence of local customs, the legislation of the State or Territory, or the decisions of the court. Basey v. Gallagher, 87 U. S. 670, p. 684. The water rights protected by this section are those recognized and acknowledged by local customs, laws, and decisions in the localities where such rights are claimed. Helena, etc. Smelting, etc. Co., In re, 48 Fed. 609, p. 611. It is not sufficient to prove simply the priority of possession to satisfy the provisions of this section, but it is still necessary to prove that the possessory right to the use of water was recognized and acknowledged by the local customs, laws, and decisions. Telluride Power, etc., Co. v. Rio Grande, etc., R. Co., 175 U. S. 639, p. 645. 56974°-Bull. 94-15- -42 |