tled in the Pacific communities.

166

Water was an indispensable requisite for carrying on mining operations; a permanent right to use certain amounts of water was as essential as the permanent right to occupy a certain parcel of mineral land. The streams and lakes were all on the public domain. For their advantageous employment it was often necessary to divert water from its natural bed, and to carry it through artificial channels, ditches" or "flumes,"—sometimes of great length and constructed at an enormous cost. There were no riparian owners or occupants except the miners, and the streams could be put to no beneficial use except for purposes of mining. From all these circumstances, and from the very necessities of the situation, it universally became one of the mining customs or regulations that the right to use a definite quantity of water, and to divert it if necessary from these streams and lakes, could be acquired by prior appropriation.

§ 15. Doctrine of appropriation.

The custom thus originating was soon approved by the courts, and the doctrine became and still is settled in California and other Pacific states and territories, in opposition to the common law, that a permanent right of property in the water of streams. or inland lakes, which wholly ran through or were situate upon the public lands of the United States, may be acquired for mining purposes by mere prior appropriation; that a prior appropriator may thus acquire the right to divert, use, and consume a quantity of water from the natural flow or condition of such streams or lakes, which may be necessary for the purposes of his mining operations; and that he becomes, so far as he has thus made an actual prior appropriation, the owner of the water as against all the world, except the United States government. This doctrine, applied at first to the operations of mining, has been extended to all other beneficial purposes for which water may be

essential,-to milling, manufacturing, agricultural, irrigating, and municipal purposes.1

§ 16. Appropriation not at first availing as against the government.

[It is very important to be noted that the right of property in running waters by appropriation, thus recognized by the courts and sanctioned by legislation, had as yet acquired no validity whatever as against the federal government or its grantee. In this respect, however clear might be the superior rights of a prior appropriator as against another person not the owner of the soil, they acquired no sanction as against the United States, or its patentee, until the act of congress of 1866. Hence it has never been held by the supreme court of the United States, or by the state courts, that an appropriation of water on the public domain, made after the act of congress of 1866, (or that of 1870,) gave to the appropriator the right to the water appropriated as against a grantee of riparian lands under a grant made or issued prior to the act of 1866, except in a case where the water so subsequently appropriated was reserved by the

1 California. Parks Canal, etc., Co. v. Hoyt, 57 Cal. 44; Hill v. Smith, 27 Cal. 480; Wixon v. Bear River, etc., Co., 24 Cal. 367; Phonix W. Co. v. Fletcher, 23 Cal. 481; Kidd v. Laird, 15 Cal. 162; Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River, etc., Co., Id. 220; Bear River, etc., Co. v. New York Min. Co., 8 Cal. 327; Crandall v. Woods, Id. 136; Hill v. King, Id. 336; Hoffman v. Stone, 7 Cal. 46; Kelly v. Natoma W. Co., 6 Cal. 107; Hill v. Newman, 5 Cal. 445; Irwin v. Phillips, Id. 140; and see, also, Maeris v. Bicknell, 7 Cal. 261, 262; Nevada, etc., Co. v. Kidd, 37 Cal. 282, 312; Farley v. Spring Valley M.

Co., 58 Cal. 142; Himes v. Johnson, 61 Cal. 259. Nevada. Strait v. Brown, 16 Nev. 317; Barnes v. Sabron, 10 Nev. 217; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Lobdell v. Simpson, 2 Nev. 274. Colorado. Schilling v. Rominger, 4 Colo. 100. Utah. Crane v. Winsor, 2 Utah, 248. Montana. Atchison v. Peterson, 1 Mont. 561. For purposes of irrigation, etc. Barnes v. Sabron, 10 Nev. 217; Lobdell v. Simpson, 2 Nev. 274. Of manufacturing or milling. McDonald v. Bear River, etc., Co., 13 Cal. 220; Ortman v. Dixon, Id. 33; and see note in 43 Amer. Dec. 279, 280.

terms of such grant.' This principle is asserted-and is clearly deduced from the authorities—in a recent decision of the supreme court of California;2 from which we quote as follows: "In the case of Van Sickle v. Haines, 7 Nev. 249, the plaintiff had diverted one-fourth of the water of Daggett creek in the year 1857. He made the diversion at a point then on the public land, but which, in 1864, was patented by the United States to the defendant Haines. In 1865, Vansickle obtained a patent for his own land, where he used the water. In 1867, Haines constructed a wood flume on his land, and turned into it all the water of the stream, thereby depriving the plaintiff of that part of it which he had been using. The supreme court of Nevada held that the plaintiff, by his appropriation of water prior to the date of defendant's patent, acquired no right which could affect that grant; and that while the act of congress of July, 1866, protected those who at that time were diverting water from its natural channels on the public lands; and while all patents issued or titles acquired from the United States since that date are obtained subject to the rights of water by appropriation existing at that time, yet, with respect to patents for riparian lands issued before the act of congress, the patentee had already acquired the right to the flow of the water, with which congress could not interfere.” The court continued: "Broder v. Water Co., 101 U. S. 274, may appear to be in conflict with Vansickle v. Haines. But is there any real conflict? It will be observed that the Broder Case turned (so far as the plaintiff's title from the railroad company was concerned) on the reservation clause in the act constituting the grant to the company, and the court held that 'a lawful claim,' within the meaning of the reservation in the act of 1864, was 'any honest claim evidenced by improvements and other acts of possession.' The

'Lux v. Haggin, (Cal.) 10 Pac. Rep. 724.

2 Id. 725.

construction given to the language of the reservation, of course, implies that those who appropriated lands or waters on the public lands, prior to the acts of 1864 or 1866, had not been treated by the government in those acts as mere trespassers, but as there by license. It does not imply that they had acquired any title which could be asserted against the United States or its grantees, except so far as their occupations of land or water were protected and reserved to them by acts of congress."]

17. The act of congress of 1866.

The right of property thus settled by state courts availed. against all persons except the United States government. This limitation was soon removed. The United States government recognized the right to water on the public domain, thus acquired by prior appropriation, as a substantial and valid right which the government was bound to acknowledge and protect; and it repeatedly approved and adopted the doctrine which had sprung from the mining customs and been settled by the state and territorial decisions. This view was expressly confirmed by a statute of congress passed July 26, 1866:2 "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 decisions of courts, the possessors and owners of such vested rights shall be maintained and respected in the same; and the right of way for the construction of ditches and canals, for the purposes herein specified, is acknowledged and confirmed." This statute, it is held by the United States supreme court, does not create the right; but it is "rather a voluntary recognition of a pre-existing right of possession, con

1 Broder v. Natoma Water Co., 101 U. S. 274; Basey v. Gallagher,

20 Wall. 670; Atchison v. Peterson, Id. 507.

2 Rev. St. U. S. § 2339.

stituting a valid claim to its continued use, than the establishment of a new one."

§ 18. Limits of the doctrine of appropriation-The early cases.

It will aid in the subsequent examination of the open questions to fix the exact extent and limits of the doctrine thus formulated, and to ascertain the grounds upon which it was rested by the courts. A very few of the earliest cases enter into no discussion, and seem to speak as though the rule were universal, applicable to all waters under all circumstances. But most

of these early decisions state the reasons for the doctrine in the most express manner, and thus indicate its grounds, extent, and limits. One or two illustrations will suffice. In Hoffman v. Stone, Murray, C. J., said: "The former decisions of this court, in cases involving the right of parties to appropriate waters for mining and other purposes, have been based upon the wants of the community, and the peculiar condition of things in this state, (for which there is no precedent,) rather than any absolute rule of law governing such cases. The absence of legislation on this subject has devoived on the courts the necessity of framing rules for the protection of this great interest, and in determining these questions we have conformed, as nearly as possible, to the analogies of the common law. The fact early manifested itself, that the mines could not be successfully worked without a proprietorship in waters, and it was recognized and maintained. To protect those who, by their energy, industry, and capital, had constructed canals and races carrying water for miles into

1 Broder v. Natoma Water Co., 101 U S. 274. The act of congress of 1866 merely confirms to landowners the rights and privileges they had formerly enjoyed by local customs and the decisions of

the courts. Jones v. Adams, (Nev.) 6 Pac. Rep. 442.

2 See, for example, Hill v. Newman, 5 Cal. 445; Kelly v. Natoma W. Co., 6 Cal. 107.

37 Cal. 47, 48, (1875.)