Local customs, regulations, and laws are paramount in determining the right and use of water from public streams, and this section is in recognition of this right without intending to create any new or different right than those existing at the time of its adoption. United States v. Conrad Investment Co., 156 Fed. 123, See Mohl v. Lamar Canal Co., 128 Fed. 776. p. 127. Affirmed in Conrad Investment Co. v. United States, 161 Fed. 829. In the arid regions of the Western States and Territories it has been the custom of the people to divert from their natural channels the waters of the streams upon the public lands and appropriate the same for the purpose of mining and other useful and beneficial uses, and these customs have been tacitly assented to by the Federal Government and encouraged by the express legislative policy of the different States, and are recognized as if they were rights which had been vested by the most distinct expression of the will of the lawmakers. Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85, p. 90. The right to the use of water for mining or other purposes can not be made to depend upon proof of a local custom to that effect in the specific locality where the right is claimed, but it is sufficient if such custom is established with reference to the State as a whole. Maffet v. Numerous regulations among miners were adopted or assumed to exist from their obvious justness for the security of ditches and flumes, and the protection of rights to water, not only between different appropriators, but between them and the holders of mining claims, and these regulations received the sanction of State courts in local controversies, and properties to the value of many millions rested upon these miners' regulations. Jennison v. Kirk, 98 U. S. 453, p. 458. There is little difference between customs of miners and mining laws up to the point where the miner seeks a patent, and the mining statutes contain no extra conditions to the possessory right, but only require discovery and marking the claim upon the ground. Upton v. Larkin, 7 Mont. 449, p. 456. See Jennison v. Kirk, 98 U. S. 453. 3. WATER-RIGHT LAWS IN FORCE IN ALASKA. This section and the corresponding parts of the act of July 26, 1866 (14 Stat. 251) are parts of the general mining laws of the United States and are in force in Alaska. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 323. Madigan v. Kougarok Min. Co., 3 Alaska 63, p. 69. Denying Ketchikan Co. v. Citizens Co., 2 Alaska 120. This and the following section are part of the general land laws of the United States, and are not in operation in Alaska except in so far as they relate to mining claims and the rights incident thereto, and to that extent only are they made applicable to public lands in Alaska by section 8 of the act of May 17, 1884 (23 Stat. 24). Brady, In re, 26 L. D. 305, p. 309. The legislation contained in the act of March 3, 1891 (26 Stat. 1095), relating to the public lands generally, affords no warrant for any extension of the application of this and the following section to public lands in Alaska, and it was not intended to extend the water rights provided for in these sections to the acquisition of land in Alaska "for the purpose of trade and manufacturers.' Brady, In re, 26 L. D. 305, p. 309. D. USES OF WATER CONTEMPLATED. 1. BENEFICIAL USE SUFFICIENT. 2. WATER RIGHTS LIMITED BY USE. 1. BENEFICIAL USE SUFFICIENT. The right to the possession and use of water for mining purposes, under this section, is not dependent on proof that it is used for mining and milling purposes, but possession and appropriation of the water to a beneficial use is sufficient, and proof of use for domestic purposes is sufficient. Silver Peak Mines v. Valcalda, 79 Fed. 886, p. 890. Every use of water for purposes of legitimate mining sanctioned by local custom and law is recognized as a right and protected as such, as well as the ditch by which the use of the water is made practicable, and this includes the use of water and the construction of a ditch to aid in carrying off the tailings, but a tail race from a hydraulic mine across unappropriated land is a vested right protected by this section. Jacob v. Day, 111 Cal. 571, p. 576. 2. WATER RIGHTS LIMITED BY USE. The right to water by prior appropriation is limited in every case, in quantity and quality, by the uses for which the appropriation is made, and a subsequent different use does not affect the right; the appropriation does not confer such an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration neither defeats nor impairs the uses to which the water is applied. Atchison v. Peterson, 87 U. S. 507, p. 514. E. RIPARIAN RIGHTS_APPLICATION TO PUBLIC LANDS. The Government being the sole proprietor of all the public lands, there is no occasion of the application of the common-law doctrine of riparian proprietorship, but when riparian rights have once attached to a private owner they can not be taken away. Atchison v. Peterson, 87 U. S. 507, p. 512. Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, p. 526. See Lux v. Haggin, 69 Cal. 255. Hammond v. Rose, 11 Colo. 524, p. 526. Drake v. Erhardt, 2 Idaho (716) 750. Reno Smelting, etc., Reduction Works v. Stevenson, 20 Nev. 269. Driskill v. Rebbe, 22 S. Dak. 242, p. 252. Moyer v. Preston, 6 Wyo. 308. The doctrines of the common law as to the rights of riparian owners respecting the use of running waters are applied in a very limited extent to the necessities of miners on the mineral lands of the public domain; the rule in force is that the prior appropriation gives the better right to running waters both in quantity and quality as may be necessary for the uses to which the water is applied. Atchison v. Peterson, 87 U. S. 507, p. 511. The common-law rule as to the rights of riparian owners does not apply to the use of water for mining purposes. Jennison v. Kirk, 98 U. S. 453, p. 458. Atchison v. Peterson, 87 U. S. 507, p. 511. Isaacs v. Barber, 10 Wash. 124, p. 130. The locators of a placer mining claim in Alaska acquire no riparian rights in or to the waters of a natural stream, but they have the right to appropriate such of the unappropriated waters of the stream as are needed in and for the working of their mining claim. Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85, p. 91. F. ABANDONMENT OR FORFEITURE OF WATER RIGHTS. Abandonment as applied to the doctrine of appropriation of water for mining purposes is an intentional relinquishment of a known right, and this intention must be ascertained from conduct and declarations. Mallett v. Uncle Sam Min. Co., 1 Nev. 188, p. 204. See Wimer v. Simmons, 27 Oreg. 1, p. 13. The vested water rights for mining purposes may be extinguished or forfeited by abandonment by proof of acts showing an intent to surrender or forsake the right, but a mere bill of sale for three mining claims described as being on a certain creek and as creek claims is not sufficient evidence merely because such bill of sale does not expressly include the water rights. Dodge v. Marden, 7 Oreg. 456, p. 458. Oviatt v. Big Four Min. Co., 39 Oreg. 118, p. 122. A patentee of a placer mining claim who fails to continue working it as a mine after it becomes unprofitable and to offer it for sale as a mill site, or for a manufacturing establishment, does not thereby lose the water right which he had as a miner. Schwab v. Bean, 86 Fed. 41, p. 43. See Snyder v. Colorado Gold Dredging Co., 181 Fed. 62. The rules of a mining district requiring a diligent and continuous prosecution of the location and development of mining claims to prevent a forfeiture or an abandonment of an appropriation of water from a natural watercourse is sufficiently complied with where the original appropriator at once commenced work on his mining claims and continued the same for four years, and where his grantee continued the work for the next succeeding four years and up to the time of the alleged forfeiture or abandonment by driving a tunnel 2,500 feet in length, making an upraise of 920 feet, building a 50stamp mill, with building space for another, and constructing the necessary buildings for its large operations, cleaning out ditches, repairing flumes, excavating for and constructing pipe lines, and spending in these and other improvements on the group of mining claims about $500,000. Thorndyke v. Alaska Perseverance Min. Co., 164 Fed. 657, p. 664. While the Land Department might, upon a satisfactory showing, be justified in approving an application filed under the act of March 3, 1891 (26 Stat. 1095, p. 1101), embracing the same property formerly used, and leave the question of forfeiture for nonuser for the courts, yet it is clearly beyond the power of the Land Department to declare a forfeiture of a right of way for the use of water in mining or other purposes under this section. Lincoln County Water Supply & Land Co. v. Big Sandy Reservoir Co., 32 L. D. 463, p. 464. G. WATER RIGHTS NOT SUBJECT TO PATENT. This section shows that it was not the intention of Congress that a water right should be patented under mining laws. Lennig, In re, 5 L. D. 190, p. 191. See Broder v. Natoma Water Co., 101 U. S. 274. Rights to the use of water for mining purposes are not only recognized, but provision is also made for their acquisition and protection, but this does not include a patent, as the possession and use constitute the foundation for these rights, and this section secures to a claimant, by virtue of possession and use, any rights acquired. Lennig, In re, 13 C. L. O. 110. Lennig, In re, 5 L. D. 190, p. 191. An applicant will not be permitted to obtain a patent under the mineral laws for a water right under an application for a placer mining claim. Pagosa Springs, In re, 1 L. D. 562. Cheesman, In re, 2 L. D. 774. Hale, In re, 3 L. D. 536. Lennig, In re, 5 L. D. 190. Miller Placer Claim, In re, 30 L. D. 225, p. 226. H. ADVERSE CLAIMS-WATER RIGHTS. The owner of a water right under this section is not compelled to adverse an application for a patent for a mining claim. Creede & Cripple Creek, etc., Co. v. Uinta Tunnel, etc., Co., 196 U. S. 337, p. 359. Where a patent is authorized to be issued to a party in possession of water rights for mining purposes and any contest arises as to such rights, the statute leaves such contest to the ordinary tribunals which are to determine the relative rights of the parties without reference to the construction of the statute, and these tribunals are guided by the laws, regulations, and customs of the mining districts in which the controversy arises. Blackburn v. Portland Gold Min. Co., 175 U. S. 571, p. 588. I. FEDERAL COURTS JURISDICTION. The mere fact that in the process of litigation a construction of a mining statute of the United States may become necessary is not alone sufficient to justify a removal of the case from a State to a Federal court. Gold Washing, etc., Co. v. Keyes, 96 U. S. 199. The question as to who has acquired a priority of possession within the meaning of this section is not necessarily a Federal question but is one of fact upon which the decision of a State court is conclusive. Telluride Power, etc., Co. v. Rio Grande, etc., R. Co., 175 U. S. 639, p. 645. A suit to establish and enforce a right or easement to deposit mining débris on the lands of another can not be removed from a State to a Federal court on the ground that it involves a construction of sections 2339 and 2340 of the United States Revised Statutes. Helena, etc., Smelting, etc., Co., In re, 48 Fed. 609, p. 610. The ascertainment of what the water rights are under this section does not involve the construction of a Federal statute in such sense as to confer jurisdiction on a Federal court. Helena, etc., Smelting, etc., Co., In re, 48 Fed. 609, p. 611. See Trafton v. Nougues, 24 Fed. Cas. 123. Los Angeles, etc., Mill. Co. v. Hoff, 48 Fed. 340. SECTION 2340, REVISED STATUTES. All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. Same as the middle part of section 17, act of July 9, 1870 (16 Stat. 217, p. 218), p. 671. A. APPLICATION OF SECTION TO EXISTING AND SUBSEQUENT RIGHTS. B. PATENTS SUBJECT TO WATER RIGHTS. C. PATENTS BURDENED BY EASEMENTS. D. DESTRUCTION OF VESTED WATER RIGHTS, p. 623. E. NO RIGHTS AS AGAINST THE GOVERNMENT, p. 623. A. APPLICATION OF SECTION TO EXISTING AND SUBSEQUENT RIGHTS. Neither this nor the preceding section is limited in its application to ditches or canals that have been constructed, nor is it to be construed as excluding those that hereafter may be constructed, but Congress evidently referred to ditches and canals that might at any time be constructed upon the public domain. Green v. Wilhite, 14 Idaho 238, p. 246. B. PATENTS SUBJECT TO WATER RIGHTS. This section is the same as section 17 of the amendatory act of July 9, 1870 (16 Stat. 217), and requires preemption or homestead patents to be subject to vested and accrued water rights for mining and other purposes. Sturr v. Beck, 133 U. S. 541, p. 551. McGuire v. Brown, 106 Cal. 660, p. 670. Dodge v. Marden, 7 Oreg. 456, p. 458. Parkersville District v. Wattier, 48 Oreg. 332, p. 338. Driskill v. Rebbe, 22 S. Dak. 242, p. 252. Willey v. Decker, 11 Wyo. 496, p. 520. See Atchison v. Peterson, 87 U. S. 507. Basey v. Gallagher, 87 U. S. 670. All patents subsequently issued for public lands must be subject to any vested right to established ditches for beneficial uses of water. Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 66. Welch v. Garrett, 5 Idaho 639, p. 641. C. PATENTS BURDENED BY EASEMENTS. An appropriator of water is a licensee of the General Government so long as the land continues to be part of the public domain; but when patent is issued to an individual it is burdened by the easement granted by the United States and the patentee holds his rights against the land under an express grant, and the person holding rights by such appropriation differs from one who holds water rights by prescription. Smith v. Hawkins, 110 Cal. 122, p. 125. Oliver v. Agasse, 132 Cal. 297, p. 300. See Jacob v. Day, 111 Cal. 571 North Fork Water Co., v. Edwards, 121 Cal. 662. |