accrued only from the date of his patent, and did not relate back to the time of his first settlement, or of his filing a declaration of pre-emption. The defendant was thus in the position of a prior appropriator. In determining the rights of such an appropriator against a subsequent grantee from the United States, the court entered into no discussion of the question upon principle. It rested the decision wholly upon the statute of congress. Mr. Justice Ross said: "The principle of prior appropriation of water on the public lands in California, where its artificial use for agricultural, mining, and other like purposes is absolutely essential, which has all along been recognized and sanctioned by the local customs, laws, and decisions, was thus expressly recognized and sanctioned by the supreme court of the United States, and also by the act of congress of 1866." The same policy, he continues, led to the further act of 1870, previously quoted. "The defendant's grantors, therefore, had the right to appropriate the water in controversy, and, if they acquired a vested right therein prior to the issuance of the plaintiff's patent, the plaintiff's rights, by express statutory enactment, are subject to the rights of the defendant."2

In support of this conclusion the following cases were cited: Megerle v. Ashe, 33 Cal. 74; Daniels v. Lansdale, 43 Cal. 41; Smith v. Athern, 34 Cal. 507; Lansdale v. Daniels, 100 U. S. 118.

2 [This doctrine is now conclusively established upon the authorities. In a later case the same court said: "Whoever purchases land from the United States or this state after the whole or some part of the water of a natural watercourse running through such land has been appropriated by some one else under the act of congress of

July 26, 1866, or under the provisions of title 8 of the Civil Code of this state, takes subject to the rights acquired by such prior appropriator." Lux v. Haggin, (Cal.) 4 Pac. Rep. 924. See, also, Barnes v. Sabron, 10 Nev. 217; Lytle Creek Water Co. v. Perdew, (Cal.) 2 Pac. Rep. 732; Judkins v. Elliott, (Cal.) 12 Pac. Rep. 116. When one obtains government land, he has a right to appropriate, for the purpose of irrigation and stock-rais-: ing, the waters of any stream flowing through government land, which have not been previously

§ 27. Views of United States supreme court.

In the case of Broder v. Natoma Water Co.,' the supreme court seems to have held, or at least to have intimated by the course of its reasoning, that the subsequent grantee from the government would take subject to the rights of the prior appropriator, even in the absence of the express declaration contained in the act of 1870. A person had made a prior appropriation from the water of a stream running through a portion of the public domain included in a tract of the public land, which was afterwards, and before the statute of 1870, granted by congress to a railroad company. As between this appropriator and a subsequent purchaser from the railroad company of another parcel on the same stream, it was held that such purchaser took his title subject to the prior appropriation, because the congressional grant to the railroad company was expressly declared to be subject to all "lawful claims." Although this provision in the grant to the railroad was similar in its import to the more comprehensive statute of 1870, yet the reasoning of the court is largely based upon the rights of the appropriator of water acquired through the operation of local customs, and recognized and protected by the earlier legislation of 1866. The established doctrine of the court was said to be that the "rights of miners who had taken possession of mines, and worked and developed them, and the rights of persons who had constructed canals and

appropriated by another, and in waters thus converted to his use he acquires a vested right which cannot be affected by those who purchase above or below him. Kaler v. Campbell, 13 Or. 596, 8. c. 11 Pac. Rep. 301. And where an appropriator of water leads his ditch through the public lands, he, by the construction of his ditch and

the appropriation and use of the water, acquires, as against a subsequent purchaser from the United States as complete and perfect a right to maintain his ditch as though such easement had vested in him by grant. Ware v. Walker. (Cal.) 12 Pac. Rep. 475.]

1101 U. S. 274.

ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866."

§ 28. The act of 1870 is declaratory only.

Where a private person can thus acquire a right of property in the water of a public stream, or, if not an absolute right of property, at least a right in the nature of an easement or servitude to use the water, which is good against the United States, as proprietor of the remaining tract of land through which the stream flows, it would seem to follow, as a necessary result of the common-law doctrines concerning the devolution of title, that the same right would remain good and attached to the stream, as against any and all subsequent proprietors who may acquire title from and under the government to all or to any part of the public lands bordering upon, adjacent to, or situated near the same stream. In other words, it would seem that the statute of 1870 should be construed as simply declaratory of a familiar legal doctrine, and not as circumscribing or restricting such doctrine. If the language of such statute be found to be too narrow or incomplete to afford, of itself, a sufficient protection to the claims of prior appropriators against subsequent owners, then the courts may fall back, if necessary, upon the broader principles of the common law. In this connection, it will be important to determine who are grantees or owners acquiring title from and under the United States. While the statute should be liberally construed in favor of the prior appropri ators, it should also be fairly and equitably interpreted in ascertaining who are the grantees and owners holding title to the public domain under the government. The discussion of this

question belongs, however, to a subsequent portion of our es

The rules thus far considered are avowedly confined in their operation to the public lands of the United States. The first contemplates an appropriation from the water of a stream or lake while it lies wholly in the public domain, before any titles of tracts adjacent to it have been acquired by other persons. The second renders a prior appropriation, thus made, valid and effectual as against private persons who subsequently acquire, from the general government, titles to portions of the public land bordering on the same lake or stream. The question is at once presented whether the same rules apply to the public lands of the state, as well as to those of the United States. The United States has, through congressional legislation, donated to individual states-to California, for example-large tracts of the original public domain, under the name of "tide-water," "swamp," and "overflowed" lands. Over such lands the state has, of

1[At the same time it must be remembered that a grant of public land of the United States carries with it the common-law rights to an innavigable stream thereon, unless the waters are expressly or impliedly reserved by the terms of the patent, or of the statute granting the land, or unless they are reserved by the congressional legislation authorizing the patent or other muniment of title. To this point the supreme court of California speaks as follows: “And if the United States since the date of the admission of the state has been the owner of the innavigable streams on its lands, and of the

subjacent soils, grants of its lands must be held to carry with them the appropriate common-law use of the waters of the innavigable streams thereon, except where the flowing waters have been reserve i from the grant. To hold otherwise would be to hold, not only that the lands of the United States are not taxable, and that the primary disposal of them is beyond state interference, but that the United States, as a riparian owner within the state, has other and different rights than other riparian owners, including its own grantees. Lux v. Haggin, (Cal.) 10 Pac. Rep. 722.]

course, both the proprietary rights of an owner, and the governmental rights of a political sovereign; while over its public lands within the territory of a state the United States has only the rights of a proprietor. If a stream was wholly situated on such public lands of California, and an appropriation should be made of its waters for irrigating, agricultural, or manufacturing purposes, before any other private persons had acquired title to tracts bordering upon its banks, would this prior appropriation be valid against the state, and also against other riparian proprietors holding titles subsequently obtained from the state? This is an important question, but its discussion will be more appropriate in connection with subsequent topics. It is enough now to say that the considerations which led to the adoption of the rules previously laid down concerning the public lands of the United States would seem to apply, with at least an equal force, to the lands owned by the state. The federal government, through its congress and its courts, has avowedly carried out at policy which was inaugurated by the legislative and judicial decisions of the state. As the doctrine of prior appropriation on the public lands of the United States originated from a policy recognized, favored, and promoted by state authority, and as similar needs exist and similar reasons apply in connection with the public lands of the state, it seems to be a natural, even if not an inevitable, consequence, that the same doctrine should be extended to those lands, as against the state itself and its subsequent grantees.1

[The position taken in the text is strongly supported by a very important decision lately rendered by the supreme court of California. In Lux v. Haggin, (Cal.) 10 Pac. Rep. 775, it is said: "The citizens of the state have never been prohibited from entering upon the public lands of the state. The courts have

always recognized a right in the prior possessor of lands of the state as against those subsequently intruding upon such possession. The same principle would protect a prior appropriator of water against a subsequent appropriator from the same stream. It is not important here to inquire whether, as