there may be fall enough for mill-sites at short distances; or the descent may be so gradual as only to admit of mills at considerable distances. In the latter case, the erection of a mill on one proprietor's land may raise and set the water back to such a distance as to prevent the proprietor above from having sufficient fall to erect a mill on his land. It seems to follow, as a necessary consequence from these principles, that in such case the proprietor who first erects his dam for such a purpose has a right to maintain it as against the proprietors above and below; and to this extent prior occupancy gives a prior title to such use. It is a profitable, beneficial, and reasonable use, and therefore one which he has a right to make. If it necessarily occupy so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria. For the same reason the proprietor below cannot erect a dam in such a manner as to raise the water and obstruct the wheels of the first occupant. He had an equal right with the proprietor below to an equal use of the stream; he had made only a reasonable use of it; his appropriation to that extent, being justifiable and prior in time, necessarily prevents the proprietor below from raising the water, without interfering with a rightful use already made; and it is therefore not an injury to him. Such appears to be the nature and extent of the prior and exclusive right which one proprietor acquires by a prior. reasonable appropriation of the use of the water in its fall; and it results, not from any originally superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors originally having the same common right. It is, in this respect, like the right in common, which any individual has, to use a highway. While one is reasonably exercising his own right, by a temporary occupation of a particular part of a street with his carriage or team, another cannot occupy the same place at the same time."1 It is to be remarked, however, that the appropriation here sanctioned was not of the stream itself, -at least, not to its whole extent,-but only of its power to drive machinery. The other riparian owners would continue in the enjoyment of the water for all the purposes to which it could ordinarily be put, except this one. Hence this apparent departure from the doctrine of the common law could not be invoked in aid of one who should entirely divert the water-course, or appropriate its whole volume to his private uses. And it is proper to add that this rule has been repudiated in certain other states, or else conditioned upon a continuance of the appropriation for such a period of time as would be requisite to establish rights by prescription.2] 1 Cary v. Daniels, 8 Metc. 466, 8. c. 41 Amer. Dec. 532. And see Gould v. Boston Duck Co.,13 Gray, 451; Fuller v. Chicopee Manuf'g Co., 16 Gray, 44; Smith v. Agawam Canal Co., 2 Allen, 357; Pratt v. Lamson, Id. 288; Lowell v. Boston, 111 Mass. 465; Lincoln v. Chadbourne, 56 Me. 197; Miller v. Troost, 14 Minn. 365, (Gil. 282.) 2 See Parker v. Hotchkiss, 25 Conn. 321; Keeney Manuf'g Co. v. Union Manuf'g Co., 39 Conn. 576; Dumont v. Kellogg, 29 Mich. 420. (15) CHAPTER III. APPROPRIATION OF WATERS FLOWING THROUGH THE PUBLIC DOMAIN. I. ORIGIN AND BASIS OF THE RIGHT TO APPROPRIATE. § 12. Scope of the present chapter. 13. Early importance of mining interests. 15. Doctrine of appropriation. 16. Appropriation not at first availing as against the govern ment. 17. The act of congress of 1866. 18. Limits of the doctrine of appropriation - The early 19. 20. cases. Views of the United States supreme court. Grounds of these decisions. 21. Doctrine of appropriation unknown to the common law. 22. Basis of right to appropriate water. 23. Grounds for presumption of license. 24. Efficacy of miners' customs. II. APPROPRIATION AS AGAINST THE SUBSEQUENT GRANTEE of the GOVERNMENT. § 25. Title of subsequent grantee is subject to prior appropri ation. 26. California decisions on this point. 27. Views of United States supreme court. 28. 29. The act of 1870 is declaratory only. III. THE RIGHT RESTRICTED to the Public Domain. § 30. Appropriation confined to public lands. 31. Jurisdiction of state and United States distinguished. 32. Power of government to annex conditions to grants. IV. CONFLICTING CLAIMS BETWEEN SETTLERS AND APPROPRIATORS. § 33. Converse of doctrine of appropriation. 34. When title from United States is perfected. 35. When patentee's riparian rights vest 36. Review of the authorities on this point. 37. Riparian rights protected. 38. Doctrine of relation applied to patentees. 39. Grounds for the application of this doctrine. I. ORIGIN AND BASIS OF THE RIGHT TO APPROPRIATE. § 12. Scope of the present chapter. Having stated the fundamental doctrines of the common law concerning the use of running streams and small inland lakes, and the rights of riparian owners, as established by the general consensus of English and American decisions, I shall proceed to examine, with more of detail, the variations from these doctrines which have been made by the courts or recognized by the legislation of the Pacific commonwealths. In this division of the subject it will be expedient to notice, in the first place, certain matters, connected with various conditions of fact, which may be regarded as settled, and subsequently to discuss those questions which are still open, and which admit of conflicting opinions, or involve, perhaps, a conflict of decision. § 13. Early importance of mining interests. From the time of the discovery of gold in California the mining interests became, and for many years continued to be in that state, and still are in other Pacific states and territories, of paramount importance, to which agriculture, manufacturing, and all other industries were subordinated. The lands containing the minerals belonged almost entirely to the public domain of the United States. Vast numbers of immigrants poured over these mineral regions, settled down in every direction, appropriated parcels of the territory to their own use, and were prospecting and mining in every mode rendered possible by their own resources, under no municipal law, and with no restraint except that of superior physical force. "The world has probably never seen a similar spectacle,-that of extensive gold fields suddenly peopled by masses of men from all states and counPOM.RIP.-2 (17) tries, restrained by no law, and not agreed as to whence the laws ought to emanate by which they would consent to be bound."1 § 14. Mining customs. In this condition of affairs, the miners themselves adopted certain "mining customs" to which they yielded a voluntary obedience, and which were afterwards recognized and sanctioned by the legislation of the state and of congress. Scattered over the territory at "camps," "bars," and "diggings," the miners. held meetings in each district or locality, and enacted regulations by which they agreed to be governed. The rules once adopted were enforced with rigor upon all settlers in the particular camp. The legislature of California, at the session of 1851, gave to these voluntary regulations a legal and compulsive efficacy by the following brief but admirably comprehensive statute: "In actions concerning mining claims, proof shall be admitted of the customs, usages, or regulations established or in force at the bar or diggings embracing said claims, and such customs, usages, or regulations, when not in conflict with the constitution and laws. of this state, shall govern the decision of the action." These "mining customs" or rules were simple, and related to the acquisition of "claims" to mineral lands and to water for the purposes of mining, and prescribed the acts necessary to constitute such an appropriation of a parcel of mineral land or portion of a stream as should give the claimant a prior right against all others, the amount of work which would entitle him to a continued possession and enjoyment, what would constitute an abandonment, and similar matters. In this proceeding we find the origin of the peculiar doctrines concerning water-rights as set As to the early history of gold mining on the Pacific coast, the customs adopted by the miners, the origin of the right to appropri ate water, etc., see remarks of Field, J., in Jennison v. Kirk, 98 U. S. 453. 2 See infra, § 24. |